The D.C. District Court has held that the 17 month extension of Optional Practical Training (OPT) for F-1 graduates in a STEM occupation is invalid. The court has vacated the rule that allows the 17 month extension, effective February 12, 2016. At this time STEM graduates with post-completion OPT remain able to apply for the 17th month extension. We will post further updates as they become available.
In the latest policy statement from USCIS, issued on July 21st, USCIS has modified their earlier statement on H-1B amnesty. Specifically, USCIS now states that if a person changed location before April 9, 2015 they are not required to file an amended H-1B Petition, and USCIS will generally not pursue a revocation or denial. If the person moved between April 9, 2015 and August 19, 2015 they have until January 15, 2016 to file an amended petition. After August 19, 2015, an amended petition must be filed before the H-1B employee changes location.
The most significant point is that, in most cases, USCIS will not impose consequences on H-1B beneficiaries who changed location before April 9, 2015. Because this statement does not guarantee the absence of consequences, we believe the more conservative approach is to file an amended H-1B petition notwithstanding this new directive. Individuals who changed location after April 9th and before August 19th have until January 15, 2016 to file amended petitions. Please note that an amended petition must now be filed before an H-1B changes locations.
On April 9, 2015, the Administrative Appeal Office of USCIS issued a new precedent decision in a case entitled “Matter of Simeo Solutions LLC.” This case held that employers must file an amended H-1B petition when an H-1B beneficiary changes locations. In the past, if an employer filed a new LCA for the new location, it could potentially avoid filing an amended H-1B petition. This case eliminates that possibility and requires an amended H-1B petition when the H-1B changes the location of his or her worksite. USCIS has created an amnesty period for correcting this problem, (see below).
This new rule does not apply, however, if the change in location occurs within the same metropolitan statistical area (MSA) or within normal commuting distance. Therefore, for example, if an H-1B beneficiary moves from one location in Denver to another location in the same city, an amended H-1B petition would not be necessary. Similarly, if an H-1B beneficiary’s worksite changes from Denver to Boulder, an amended H-1B petition would not be necessary since this is considered normal commuting distance. However, in both cases the employer must repost the position at the new location.
USCIS has created an Amnesty for those H-1B beneficiaries who have changed work locations and who have not filed an amended H-1B. Companies have been given until August 19, 2015 to file an amended petition to avoid any consequences caused by a change in location without an accompanying amended petition. If an amended petition is not filed by August 19th, the H-1B beneficiary could be deemed to be out of status which would have a detrimental impact on ongoing immigration status. Also we anticipate that USCIS will be targeting this issue in conducting random or targeted site visits.
We are providing this notice to our clients and suggest that they conduct an audit to make sure that their H-1B employees are still working in the same location as listed on the original LCA, or are working in the same MSA, or within normal commuting distance of the original LCA location. If there has been a change of location, we can prepare an amended H-1B petition.
Since time is of the essence, we suggest that this audit be undertaken as quickly as possible. Please let us know if you have any questions.
The Department of Homeland Security announced this week that it would extend Temporary Protected Status for Somali nationals for an additional eighteen months. During this period, approved Somali nationals in the U.S. cannot be detained by DHS solely on the basis of their immigration status. They are also eligible to receive work authorization during this time.
The extension will be effective from September 18, 2015 through March 17, 2017. Current Somali TPS beneficiaries who wish to extend their TPS and receive a new Employment Authorization Document must re-register with USCIS between June 1, 2015 and July 31, 2015. The new employment documents will expire on the final day of the extension, March 17, 2017.
Temporary Protected Status, or TPS, is a DHS designation that prohibits immigration detention and grants work authorization when conditions in a country temporarily prevent nationals from returning safely, or when the country is unable to adequately handle their return. TPS may be granted due to armed conflict, environmental disaster, or other extraordinary and temporary conditions.
President Obama’s latest executive actions on immigration will remain on hold after a federal appeals court refused to lift an injunction on the two executive orders.
The first order would have implemented Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The plan would allow parents of US citizens and lawful permanent residents to request deferred action and apply for work authorization for three years provided they have resided in the US continuously for the past five years and pass a background check. The second order would have expanded Deferred Action for Childhood Arrivals (DACA) to include childhood arrivals who were 31 years of age or older when DACA was initially announced, as well as extending the period of work authorization under DACA from two years to three years. DAPA was scheduled to take effect in February, while the DACA expansion was scheduled to take effect this month. Combined, the plans would affect an estimated 4.7 million undocumented immigrants.
Twenty six states filed suit challenging the executive orders as an unconstitutional overreach of presidential power, and a US district judge issued the injunction in February when he sided with the states in the suit. The injunction is now likely to remain in place for the duration of the federal government’s appeal. The court ruling does not affect the existing DACA program, which will continue to accept requests and issue deferred action and work authorization.
USCIS announced that it will temporarily suspend premium processing for all H-1B Extension petitions from May 26, 2015 until July 27, 2015. This suspension will enable USCIS to implement employment authorization to eligible H-4 spouses of H-1B nonimmigrants.
During this time, USCIS will continue to premium process Extension of Stay petitions filed prior to May 26, 2015, and will continue to refund the premium processing fee if USCIS does not act on the case within the guaranteed 15-calender-day period. This suspension only affects premium processing requests for Extension of Stay petitions; all other Form I-129 H-1B petitions will remain eligible for premium processing during this time.
Reminder to all potential applicants that Wednesday May 20, 2015 is the registration deadline for nationals of Liberia, Guinea, and Sierra Leone who believe they are eligible for Temporary Protected Status (TPS) to apply.
To demonstrate eligibility, applicants must show that they have been residing continuously in the U.S. since November 20, 2014, have been continuously physical present in the U.S. since November 21, 2014, and must pass a background security check. If granted, TPS will be awarded from November 21, 2014 until May 21, 2016.
TPS may be granted to foreign nationals who are present in the United States when disaster hits their home country or when conditions in their home country prevent safe return. TPS is granted for temporary conditions such as civil war and/or armed conflict and environmental disasters. TPS is a temporary grant of lawful immigration status in the United States that does not lead to citizenship, permanent residence, or any other immigration status.
While a foreign national holds TPS, he or she:
Call to schedule a consultation with a Stern & Curray attorney if you believe you may qualify for TPS.
A judge in Maricopa County Arizona recently ruled that DACA recipients should be eligible to receive in-state tuition at Arizona colleges. After this ruling, the Arizona State Board of Regents announced that DACA recipients are eligible for in-state tuition rates at public universities. This change is being implemented immediately and represents a significant commitment to access to more affordable higher education. Currently more than 23,000 immigrants in Arizona have received DACA status since the program was initiated in 2012.
A United States District Court Federal Judge issued a tentative ruling which finds that the Department of Homeland Security’s policy of housing mothers and children in family detention is in violation of an 18 year-old court settlement. Specifically, the settlement in question pertains to the detention of migrant children and mandates that minor children should be placed in the custody of a family member or legal guardian when at all possible. The settlement also dictates that if a minor child is held in detention, they should be housed in the least restrictive conditions possible.
The federal judge ruled that mothers and children cannot be detained in unlicensed detention facilities such as the Karnes Family Detention Facility and the Dilley Facility in Texas – two of four large family detention facilities in the United States. The judge commented that it is inappropriate to detain mothers and children without extenuating circumstances such as an existing safety concern or a flight risk. At this point the tentative ruling has just been released to attorneys who are party to the case who will begin to negotiate a settlement. If a settlement cannot be reached, the Department of Homeland Security may be forced to restructure or even abandon their family detention policy.
A bill introduced in California to help U Visa applicants gets one step closer to becoming law. The U is a visa for victims of certain crimes who help in the prosecution of those crimes. The first step in being awarded a U Visa is getting law enforcement to certify that the applicant was a victim and was helpful in the prosecution of the crime. Problems arise, however, in that law enforcement is not mandated to sign the certification form and has no time frame requirements for doing so. Various district attorneys, police departments, and judicial officials all have their own ever-changing policies for U Visas — meaning that a U Visa case in one county can have a drastically different outlook than a U Visa case in the neighboring county.
To remedy this problem, California became the first state in the nation to take steps to implement a time limit of 90 days for the U Visa to be certified by law enforcement. This time frame shrinks even further to 14 days for victims who are in removal proceedings. This specific bill, part of a package of bills titled “Immigrants Shape California,” next moves to the California Senate Appropriations Committee in the coming weeks.