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1 MAY 2015 Published by Greg Siskind, partner at the Immigration Law Offices of Siskind Susser, PC Attorneys at Law. Telephone: Local telephone: Siskind Susser serves immigration clients throughout the world from its offices in the US and its affiliate offices across the world. To schedule a telephone or inperson consultation with the firm, go to Editor: Greg Siskind. Associate Editor: Rose Baker. Contributors: Rose Baker, Ari Sauer, Yvette Sebelist. GREG SISKIND To receive a free subscription to Siskind s Immigration Bulletin, fill out the form at To unsubscribe, send your request to visalawunsubscribe@topica.com 1. Openers ABCs of Immigration: I-601A Provisional Waiver AskVisalaw.com News from the Courts... 8 Perez-Olano v. Holder Settlement USCIS to Revisit Special Immigrant Juvenile Applications... 8 H-2B Program Extended to May News Bytes... 9 DOL Expands Visa Protection for Trafficking Victims... 9 F-1 and M-1 Dependents Allowed Part-Time Study USCIS Clarifies When Amended H-1B Petition Is Required H-1B Cap Premium Processing Now in Progress In the News at ABIL AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals AAO Decides Two Cases Definition of 'Doing Business' and Material Change in Place of Employment Updates from the Visalaw.com Blogs State Department Visa Bulletin: May

2 1. Openers Dear Readers: The President s announced executive actions from last November are continuing to dominate the immigration law conversation. The headliner program Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) still remains on hold until the courts resolve whether the President has the power to implement it. Texas District Court Judge Andrew Hanen issued an injunction barring the President from implementing the program. A 5 th Circuit panel of judges heard an appeal regarding staying the injunction and we re awaiting a ruling. In the meantime, oral arguments are scheduled to be heard in July. So we ought to have an actual decision within a month or two of that. I m still betting on the President, though many think this one will go to the Supreme Court. ***** Last month we were in the middle of getting our H-1B cap cases ready to go. If H-1B filings are a good leading indicator of where hiring is going to be in later 2015, then there s reason to be bullish. 230,000+ applications were received for 85,000 H-1B slots, far more than any prior year. The total is, in fact, about 30% more than last year. Whether Congress will wake up and deal with this crisis is an open question. The President s executive action ideas will help, but this can only really be solved through legislation. ***** In April, several Siskind Susser lawyers attended the American Immigration Lawyers Association s National Day of Action which involved visiting congressional offices to talk about the need for immigration reform. There s a lot of pessimism on the Hill these days, but I m an optimist and hope that responsible people in both parties will put the needs of the country ahead of partisan bickering and move forward even in baby steps with improving our immigration system. ***** Siskind Susser got an interesting honor this week. Four of our lawyers were named to Who s Who in Corporate Immigration Law s annual list of the world s top immigration lawyers. Who s Who Legal is a strategic research partner with the American Bar Association s Section on International Law, I was listed again this year as one of the top 10 lawyers in North America and my colleagues Ari Sauer, Lynn Susser and Elissa Taub were included as well. A link to the list can be found at ***** Readers are reminded that Siskind Susser welcomes new clients and if they would like to talk with one of our attorneys, visit our web site at You can contact the

3 attorney of your choice by visiting their individual biography pages, fill out our consultation request form at the web site or call the phone number on the site to set up an appointment. Regards, Greg Siskind 2. ABCs of Immigration: I-601A Provisional Waiver On January 3, 2013, USCIS published a rule which amends its policy to allow certain individuals to apply for a provisional unlawful presence waiver before departing from the United States for their immigrant visa interviews in their country of origin. This rule, known as the I-601A Provisional Waiver, will greatly reduce the length of time U.S. citizens are separated from their immediate relatives who are in the process of obtaining immigrant visas. The change that could affect as many as 1 million of the estimated 11 million immigrants unlawfully present in the United States. What is an I-601A Provisional Waiver? An I-601A Provisional Waiver is a waiver issued to undocumented immigrants or overstays who can demonstrate that time apart from an U.S. citizen spouse, child or parent would create extreme hardship. The provisional waiver allows the immediate family members of a U.S. citizen to start the application process for an immigrant visa for permanent residence without leaving the United States. Immediate relatives are now allowed to wait in the United States while USCIS decides on their waiver application and leave the United States for their visa interview abroad once the waiver has been approved. How is it different from an I-601 Waiver of Ground of Inadmissibility? Previously, immediate relatives of U.S. citizens who were ineligible for an immigrant visa we required to leave the United States and obtain an immigrant visa abroad. Yet, individuals who have been unlawfully present in the United States for more than six months are subject to a bar of inadmissibility for 3 (if under a year) or 10 (if one year or more) years if they leave the United States. While USCIS existing I-601 hardship waiver process allows such individuals to obtain a waiver in order to return to the United States, immediate relatives could not file a waiver application until after they had appeared for a visa interview abroad and their visa application has been denied. In addition, the applicant had to remain outside of the United States while waiting on USCIS decision of their waiver application, a process which could take as long as a year or more. As a result, USCIS has determined that it is unreasonable to require the immediate relatives of U.S. citizens to wait outside the United States for the long period it takes to adjudicate their waiver applications. As a result, USCIS created the I-601A Provisional Waiver process,

4 which allows certain immediate family members (children, spouse, and parents) of U.S. citizens to apply for a waiver while they are in the United States. Who is eligible to apply? An applicant must be someone who: Has an approved I-130 Immigrant Petition filed by their U.S. citizen spouse or U.S. citizen parent under the Immediate Relative category, or an approved I-360 Violence Against Women s Act (VAWA) Petition as an Immediate Relative Is physically present in the United States when their Form I-601A, Application for a Provisional Unlawful Presence Waiver, is filed and present on the date of their biometrics (fingerprinting) appointment for the application Has not been subject to any other bar of inadmissibility Has a pending Department of State (DOS) case with the National Visa Center and has paid the visa application fees Has not been scheduled for a visa interview appointment at the U.S. consulate before January 3, 2013 Has shown that a waiver denial would result in extreme hardship to his or her U.S. citizen spouse or parent What would disqualify someone? Those who have an outstanding deportation or removal order are ineligible. In order to be eligible to apply, they would first need to have the Immigration Court re-open their removal or deportation order and administratively close or terminate their case. The same is true for someone who was granted Voluntary Departure, but did not leave the US under the grant of Voluntary Departure. What about people already in removal proceedings? Individuals in removal proceedings have their case terminated or administratively closed, or have ICE cancel their Notice to Appear in order to apply for the I-601A provisional waiver. It is important to note that if you have your case administratively closed, you will be subject to a deportation order if you leave the United States without having your case terminated, even if you are granted an I-601A provisional waiver. What is the application process? The provisional unlawful presence waiver application is generally adjudicated at the USCIS National Benefits Center (NBC). USCIS will make a decision based on the applicant s responses in the Form I 601A, any supporting documentation, and any results from background and security checks. DHS may also request that an applicant appear for an interview, although the chances will be rare. In any case where an interview is required, USCIS will schedule the applicant for an interview at a local district office. What is the government s fee to apply? The Department of Homeland Security (DHS) has decided that the initial filing fee for the Form I-601A, Application for a Provisional Unlawful Presence Waiver, will be $670.

5 Can I apply for the I-601A Provisional Waiver if I am filing an I-485 Application for Adjustment of Status? A foreign national who is present in the United States and is eligible to apply for an I-485 Application for Adjustment of Status would not need to apply for an I-601A Provisional Waiver. If you require a waiver for the unlawful presence bar because you are ineligible to adjust status, you should file a Form I-601, Application for Waiver of Ground of Inadmissibility. The I-601A Provisional Waiver is only for those who are currently in the United States but will apply for an immigrant visa at the U.S. Consulate abroad as they are ineligible to apply for a Form I-485, Application for Adjustment of Status. If my application is approved, will I be able to apply for status in the US without leaving or for work authorization? An I-601A Provisional Waiver will not allow someone to apply for status without leaving the US and approval of the I-601A Provisional Waiver does not allow the person to apply for work authorization, a driver s license or a social security card. If I have been granted Deferred Action (DACA), can I apply for an I-601A Provisional Waiver? Individuals who have been granted Deferred Action under the Deferred Action for Childhood Arrivals (DACA) are eligible to apply for an I-601A Provisional Waiver as long as they meet all the requirements for the program. However, a DACA beneficiary who has an outstanding order of removal would not be eligible to apply for the I-601A Provisional Waiver without first having their case re-opened by the Immigration Court and administratively closed or terminated. How long will it take USCIS to decide on a provisional waiver application? USCIS and the Department of State (DOS) are working closely to make sure that the approval of a provisional unlawful presence waiver application is close to the time of the scheduled immigrant visa interview abroad. Currently, DACA applications take approximately 5 months for new submissions and about 3 months for renewals. This timeframe will allow the immediate relative(s) the opportunity to remain united with his or her U.S. citizen spouse or parent until shortly before his or her immigrant visa interview abroad. It will also allow DOS to give a ruling on the immigrant visa application shortly after the applicant appears for his or her interview. This streamlined process will significantly shorten the length of time immediate relatives must remain outside the United States before they can rejoin their U.S. citizen relatives. If my provisional waiver application is approved, does that guarantee that I will be granted an immigrant visa at the U.S. Consulate? The approval of an I-601A Provisional Waiver does not guarantee that the U.S. Consulate will grant the applicant an immigrant visa. The applicant must still show the consular officer that they are otherwise eligible for the immigrant visa. If the consular officer determines

6 that the applicant is inadmissible on grounds other than the 3 or 10 year bar, the applicant will be denied an immigrant visa. If my provisional waiver application is denied, can I file it again in the future? Yes, especially if your circumstances have changed. However, USCIS will expect an applicant who is applying a second time to provide additional evidence of extreme hardship or changed circumstances, above and beyond what was provided in the first application. Therefore, it is best to submit a strong application the first time you apply, since it may be more difficult to get an approval the second time. If my provisional waiver application is denied, can I still apply for a hardship waiver under regular processing? Yes, if your Form I-601A, Application for Provisional Waiver Application is denied, you may still be eligible to apply for an I-601 hardship waiver under the regular processing. If my provisional waiver application is denied, will I be deported? USCIS will continue to follow their current standard in deciding whether to start deportation proceedings against someone whose provisional waiver application is denied. Most applicants will not be at risk. However, if you provide false information on your application or submit false documents, USCIS might initiate deportation proceedings against you. Also, those with certain criminal convictions may be subject to deportation proceedings. For more information on USCIS standards regarding deportation proceedings for denied applicants, go to If I have already applied for my immigrant visa, have been scheduled for an interview, but have not left the United States, can I apply for a provisional waiver? If your immigrant visa interview at the U.S. Consulate was scheduled by a consular officer before January 3, 2013 (even if the actual interview was scheduled for a date after January 3, 2013), you are not eligible to apply for a provisional waiver. This is also true for applicants who did not show up for the interview, cancelled the interview, or rescheduled the interview. However, if you had an interview that was scheduled by the U.S. Consulate before January 3, 2013 and you are now applying for a visa based upon an I-130 Immediate Relative Petition filed by a different relative, you may be eligible to apply for the I-601A Provisional Waiver. ***** 3. AskVisalaw.com In our Ask Visalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari s blog, The Immigration Answer Man, where he provides more answers to your

7 immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter. If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can t answer every question, but if you ask a short question that can be answered concisely, we ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here. * * * 1) QUESTION: I am a US citizen and I filed an I-130 for my husband which was approved. My husband went to Ciudad Juarez, Mexico for the visa interview. He was denied the visa and told he has to stay in Mexico for 10 years before he can reapply. Can we do anything? ANSWER: A foreign national who enters the US without inspection or who enters on a visa and overstays their expiration date on their visa may fall into a category called unlawful presence. Someone who has been unlawfully present for more than 180 days and leaves the US will be subject to a three-year bar from being able to get a visa to return to the US. Someone who has been unlawfully present for more than a year and leaves the US will be subject to a ten-year bar from being able to get a visa to return to the US. There is a possibility of obtaining a waiver of the 3 or 10 year bar, without waiting the 3 or 10 years, if the applicant has a US citizen or permanent resident spouse or parent and can show that their relative will suffer extreme hardship if the waiver is not granted. Someone who accrues a year of unlawful presence, leaves the US and then reenters the US without inspection will be subject to a permanent bar from being able to get a visa. Also if someone has been issued a removal order by an Immigration Judge or by CBP, leaves the US and then reenters without inspection they will be subject to the permanent bar as well. Someone subject to the permanent bar for unlawful presence must wait outside the US for at least 10 years before they are eligible to apply for a waiver based on hardship to their relative. This is a brief overview of these rules. If someone feels they might have been out of status for any period of time, they should consult an immigration law attorney before filing any application or leaving the US. Also, not everyone who has fallen out of status has been unlawfully present. Sometimes people are not subject to the bar even when USCIS or the Consulate says they are. An attorney should be consulted to determine if the person is unlawfully present or subject to one of the bars. 2) QUESTION: I am a permanent resident. I got my green card through my employer four years ago. My wife is a US citizen and I have been married for three years. Can I apply for US citizenship now based on my marriage to a US citizen or do I have to wait until I have had my green card for 5 years?

8 ANSWER: As long as you meet the other requirements, you can apply now. A permanent resident who gets their green card through employment is still eligible to apply for citizenship through naturalization based upon marrige to a US citizen for three years. How the person obtained their residence is not relevant. To meet the three-year rule a) the person must have been a permanent resident for at least 3 years, b) they must have been married to a US citizen for the past 3 years, c) the spouse must have been a US citizen for the past 3 years, and d) they must have been living together for the past 3 years. The applicant must also meet all other requirements, such as the continuous residence requirement, the physical presence requirement and the good moral character requirement. ***** 4. News from the Courts Perez-Olano v. Holder Settlement USCIS to Revisit Special Immigrant Juvenile Applications U.S. Citizenship and Immigration Services (USCIS) has reached a settlement with the plaintiffs in Perez-Olano v. Holder. According to a stipulation in the settlement, USCIS will adjust current procedures for Special Immigrant Juvenile (SIJ) applications and SIJ-based Adjustment of Status (AOS) requests and will revisit cases in which SIJ applications or SIJbased AOS requests were denied because the applicant s state court dependency order had expired at the time of filing. In the future, USCIS will not deny, revoke, or terminate a SIJ Application or SIJ-based AOS if, at the time of filing if (1) the applicant is or was under 21 years of age, unmarried, and otherwise eligible, and (2) the applicant either is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing. Without additional fees, USCIS will reopen applications for SIJ status or SIJ-based AOS requests that were denied, revoked or terminated on or after December 15, 2010, on the ground that the class member s valid dependency order had been terminated based on age prior to filing form I-360 with USCIS, provided that at the time of filing the class member was under 21 years of age and unmarried. Except for criminal activity that would disqualify an applicant for adjustment of status, USCIS will re-adjudicate reopened applications based on the facts, laws, and regulations extant at the time USCIS initially denied, revoked, or terminated the SIJ application or SIJ-based adjustment of status. USCIS will make good faith efforts to re-adjudicate reopened applications before later-filed applications. USCIS will send letters to all persons whose SIJ applications or SIJ-based AOS applications are eligible to be re-opened. Applicants have until June 15, 2018 to request USCIS to reopen and re-adjudicate applications for SIJ classification and/or SIJ-based adjustment of status pursuant to the new stipulation.

9 For more information regarding the settlement and the new stipulation, visit *** H-2B Program Extended to May 15 The Federal District Court in the Northern District of Florida issued an order allowing the U.S. Department of Labor to continue issuing H-2B temporary labor certifications until May 15, In the March 4 th ruling of Perez vs. Perez, the court vacated DOL s H-2B regulations on the basis that DOL has no authority under the Immigration and Nationality Act (INA) to issue them. Following the court order, DHS suspended adjudications of H-2B petitions. While DOL continues to process H-2B requests under current regulations until May 15 th, DOL and the Department of Homeland Security (DHS) will work to publish regulations explicitly allowing DOL the authority to grant H-2B petitions. Premium processing requests for H-2B resumed on April 20 th. The current filing fee for Form I-907, Request for Premium Processing Service is $1,225. Form I-907 may be submitted with a Form I-129, Petition for Nonimmigrant Worker or it may be filed separately to request premium processing service for a previously filed H-2B petition. ***** 5. News Bytes DOL Expands Visa Protection for Trafficking Victims U.S. Secretary of Labor Thomas E. Perez recently announced expanded U and T visa protection for trafficking victims. The President called on DOL to take such an action in his November 2014 executive actions announcements. DOL s Wage and Hour Division enforces federal workplace laws and will work cooperatively with the proper authorities to provide protection for vulnerable workers exploited because of their immigration status. The Wage and Hour Division will begin exercising its right to certify applications for trafficking victims seeking T visas. T nonimmigrant visas provide legal status to certain victims of human trafficking who assist law enforcement authorities in the investigation or prosecution of trafficking crimes. Additionally, DOL s Wage and Hour Division will begin certifying U visas based on three new certifications. Since 2011, DOL has been certifying U visas for victims of involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering. In an effort to better protect exploited immigrant workers, DOL has expanded U visa certifications to include victims of extortion, forced labor, and fraud in foreign labor contracting.

10 For more information regarding the Wage and Hour Division s protocols for U and T visas, visit *** F-1 and M-1 Dependents Allowed Part-Time Study The Department of Homeland Security has amended its regulations under the Student and Exchange Visitor Program (SEVP) to allow dependents of F-1 and M-1 nonimmigrant students to pursue part-time courses of study at SEVP-certified schools in the US. Spouses and dependent children of F-1 and M-1 nonimmigrant students may enroll in study at SEVPcertified schools for part-time study without a change of status; however, in order to engage in a full course of study, dependents of F-1/M-1 visa holders must apply for and be approved by DHS for F-1, M-1 or J-1 status. The new SEVP regulations will provide incentive for international students with families to pursue their studies at US institutions. A full report of the Final Rule is available here: *** USCIS Clarifies When Amended H-1B Petition Is Required On April 9, 2015, the Administrative Appeals Office (AAO) of the USCIS issued a precedent decision, Matter of Simeio Solutions, Inc., in which it pronounced a new rule regarding when an amended H-1B petition must be filed. The AAO determined that any time an employer changes an H-1B employee s worksite in such a way that a new Labor Condition Application (LCA) must be filed with the Department of Labor, USCIS will expect the employer to file an H-1B amendment. Prior USCIS guidance was exactly the opposite, so this new decision reflects a policy reversal by USCIS. There are limited exceptions to when an LCA is required, so not all changes in location will require an amendment, and there are other details of this decision that are still being debated and discussed. The best course is for employers to notify immigration counsel any time a change in worksite location is contemplated for an H- 1B employee and before any such change occurs. *** H-1B Cap Premium Processing Now in Progress After temporarily adjusting premium processing practices due to a record number of requests, USCIS began premium processing for cap-subject H-1B petitions on April 27 th. For qualifying employment-based petitions, premium processing guarantees a 15-calendar-day processing time. Cap-exempt H-1B petitions will be processed within 15 days of the date noted on the Form I-797 receipt notice; however, the 15-day premium processing period for cap-subject H-1B petitions will not begin until April 27 th, regardless of the receipt date.

11 ***** 6. In the News at ABIL Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at The following articles are excerpts from ABIL s monthly Immigration Insider, available here on their website. *** AAO Seeks Friend-of-Court Briefs on Legal Rights of I-140 Beneficiaries in Adjudications and Appeals U.S. Citizenship and Immigration Services' Administrative Appeals Office (AAO) is seeking amicus curiae (friend of the court) briefs from stakeholders concerning whether beneficiaries of certain immigrant visa petitions have a legal right to participate in the adjudication process, including appealing to the AAO (and if so, when, and under what circumstances). Specifically, the AAO seeks briefs on how this issue applies to beneficiaries of Form I-140, Immigrant Petition for Alien Worker, and the effect, if any, of the American Competitiveness in the Twenty-First Century Act on denied or revoked I-140 petitions. The deadline for the AAO to receive briefs is May 22, The AAO's request, which includes additional details, is available at am%20offices/aao/ aaoamicus.pdf. *** AAO Decides Two Cases Definition of 'Doing Business' and Material Change in Place of Employment U.S. Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO) recently decided two cases of interest. In Matter of Leaching International, Inc., 26 I&N Dec. 532 (AAO 2015), in which the petitioner's appeal was sustained, the AAO noted that the petitioner is a U.S. subsidiary of a Chinese clothing manufacturing company that filed an Immigrant Petition for Alien Worker (Form I-140) to classify the beneficiary as a multinational manager or executive. The petitioner sought to employ the beneficiary in the position of deputy general manager. The Texas USCIS Service Center Director denied the petition, finding that the petitioner failed to establish that it had been doing business for at least one year as of the date the petition was filed.

12 Established in New York in 2008, the petitioner imports and sells the Chinese parent company's products to United States customers, primarily major clothing retailers. The petitioner directly performed these sales activities through However, beginning on or about January 2012, it provided marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate, which previously employed the beneficiary and was owned by the Chinese parent company. The Service Center Director concluded that the petitioner was not doing business as required by the regulations, reasoning that the petitioner s evidence "do[es] not indicate 'doing business' with independent corporations or entities" for a full year preceding the filing of the petition, but rather "only demonstrate[s] the shipment of goods from the foreign company to the U.S. company." Specifically, the Director found that the petitioner, as a clothing importer, should have provided invoices or evidence of payment of invoices from the customers who purchased the clothing for the year preceding the filing of the petition. On appeal, the petitioner asserted that the Director erred and that existing case law and regulatory history supported a conclusion that the petitioner is doing business in a regular, systematic, and continuous fashion despite the fact that it is not a named party to contracts with buyers in the United States. The petitioner states that the evidence establishes it acts as an intermediary between its Hong Kong affiliate and the U.S. buyers and suppliers by locating customers and finalizing the details of sales contracts for the benefit of the affiliate. The AAO noted that the Director s finding that the petitioner did not submit evidence of doing business with "independent corporations or entities" implies a requirement that a petitioner must transact directly with an unaffiliated third party. In sustaining the petitioner's appeal, the AAO noted, however, that: (1) The definition of "doing business" at 8 CFR 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party; and (2) A petitioner may establish that it is "doing business" by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization. Matter of Leaching is available at In Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO affirmed the Service Center Director's decision to revoke an petition's approval. Among other things, the Director had concluded that changes in the beneficiary's places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. The changes included different metropolitan statistical areas from the original place of employment, which USCIS agents were unable to find. The Director held that the petitioner therefore should have filed an amended Form I-129 H-1B petition corresponding to a new labor condition application (LCA) that reflected these changes, but the petitioner failed to do so. In affirming the Director's decision, the AAO held:

13 (1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to USCIS with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 CFR 214.2(h)(2)(i)(E) and (11)(i)(A) (2014). (2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H 1B petition with the corresponding LCA. The AAO noted that petitioners must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility for H-1B status. Matter of Simeio Solutions, LLC, is available at Commentary. In the past, employers relied on informal guidance indicating that as long as a new LCA was obtained before placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int l Pers., Inc. (October 23, 2003). The AAO now has explicitly stated in Simeio Solutions that the Hernandez guidance has been superseded. Even before the guidance was formally superseded, employers were filing amended H-1B petitions, as consular officers were recommending to USCIS that the H-1B petition be revoked if a new LCA was obtained without an amendment of the H-1B petition. According to the AAO, "[i]f an employer does not submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security." The AAO cited INA 101(a)(15)(H)(i)(b), 8 CFR 214.2(h)(4)(i)B)(1), and 20 CFR (b) to support its position, but none of these provisions seems to suggest that an LCA obtained after an H-1B petition has already been submitted is not valid if it is "not certified to the Secretary of Homeland Security." The Department of Labor (DOL) certifies the LCA. There is no separate process where the DOL also has to certify the LCA to the Secretary of Homeland Security. It is not so much the cost that troubles employers with respect to filing an amended H-1B petition. The USCIS has made it extremely onerous for employers to obtain H-1B petitions especially when an H-1B worker will be assigned to third party client sites. This is a legitimate business model that American companies across the board rely on to meet their IT needs, but USCIS is now requiring an onerous demonstration that the petitioning company will still have a right to control the H-1B worker's employment. Each time the employer files an amendment, USCIS will again make the employer demonstrate the employer-employee relationship through the issuance of a request for evidence (RFE). The employer will thus risk a denial upon seeking an amendment, even though it received an H- 1B approval initially on virtually the same facts. H-1B workers in other industries such as healthcare also get reassigned to different locations, such as physicians, nurses, and physical therapists. They too will be burdened by the need to file amended H-1B petitions each time they move to a new work location. Arguably, if an H-1B worker is being moved to a new job location within the same area of intended employment, a new LCA is not required, nor will an H-1B amendment be required.

14 The original LCA should still be posted in the new work location within the same area of intended employment. 20 CFR defines area of intended employment : Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H-1B nonimmigrant is or will be employed. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., normal commuting distances might be 20, 30, or 50 miles). If the place of employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within normal commuting distance of the place of employment; however, all locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distance. The borders of MSAs and PMSAs are not controlling with regard to the identification of the normal commuting area; a location outside of an MSA or PMSA (or a CMSA) may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA or PMSA (or CMSA). So a move to a new job location within New York City (NYC) would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC. The DOL Wage and Hour Division Fact Sheet # 62J at also confirms this: If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment? No. The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite. The AAO decision in Simeio Solutions further overregulates the H-1B visa. This in turn will deprive U.S. companies of an efficient business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top talent quickly with flexibility and at affordable prices and scale that benefit consumers and promote diversity of product development. This is what the oft-criticized "job shop" readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative "job shop" is, in reality,

15 the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the United States promotes to other countries but seems to restrict when applied to service industries located in countries such as India that desire to do business in the United States through their skilled personnel. The Hernandez guidance provided flexibility to employers whose H-1B workers frequently moved among client locations, while ensuring the integrity of the H-1B visa program. Employers were still required to obtain new LCAs based on the prevailing wage in the new area of employment, and also notify U.S. workers. However, they were not required to file onerous H-1B amendments each time there was a move, and risk further arbitrary and capricious scrutiny. The AAO has removed this flexibility, and has further regulated the H-1B to such an extent that the LCA must now always firmly and securely tether an H-1B worker through an amended petition just like a dog to his leash. *** This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers ( of which Lynn Susser is an active member. ***** 7. Updates from the Visalaw.com Blogs Greg Siskind s Blog on ILW.com Immigrant of the Day: Harold Ekeh Ivy-League Bound Immigrant of the Day: Feidin Santana Whistleblower Bruce Buchanan's Blog on ILW.com Judge Says State Immigration Law is Unconstitutional OCAHO Reduces Employer's I-9 Penalty by about 50% OSC Publishes Technical Assistance Letter on Texas Executive Order USCIS mye-verify Now Available Nationwide E-Verify Calls Attention from Enforcement Agencies ***** 8. State Department Visa Bulletin: May 2015 May Visa Bulletin Summary: Family 1st - World numbers, China and India progressed 2 weeks to 15 August 2007; Mexico moved forward 1 week to 08 November 1994; the Philippines remains at 01 February 2005.

16 Family 2A China, India, and the Philippines advanced 1 month to 01 September 2013; Mexico advanced 1 month to 08 August Family 2B - World numbers, China and India moved forward 3 weeks 3 days to 15 September 2008; Mexico progressed 2 months to 01 April 1995; the Philippines moved forward 3 weeks to 22 April Family 3rd World numbers, China and India advanced 2 weeks to 22 February 2004; Mexico progressed 2 weeks to 15 April 1994; the Philippines moved forward 1 week to 15 August Family 4th World numbers, China and India advanced 1 month 2 weeks 3 days to 01 August 2002; Mexico advanced 1 week to 15 July 1997; the Philippines advanced 1 month to 22 October Employment 1st Still current in all categories. Employment 2nd World numbers, China advanced 1 year 2 months to 01 June 2012; India advanced 7 months 2 weeks to 15 April 2008; Mexico and the Philippines are still current. Employment 3rd World numbers, China progressed 4 months to 01 May 2011; India advanced 1 week to 15 January 2004; Mexico moved forward 3 months to 01 January 2015; the Philippines regressed 7 years 3 months to 01 July Other Workers World numbers, China progressed 3 months to 15 November 2005; India advanced 1 week to 15 January 2004; Mexico moved forward 3 months to 01 January 2015; the Philippines regressed 7 years 3 months to 01 July Employment 4th Still current in all categories. Certain Religious Workers Still current in all categories. Employment 5th Still current in all categories. Number 80 Volume IX Washington, D.C A. STATUTORY NUMBERS 1. This bulletin summarizes the availability of immigrant numbers during May. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by April 13th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the

17 priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category "unavailable", and no further requests for numbers would be honored. 2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employmentbased preference immigrants is at least 140,000. Section 202 prescribes that the percountry limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7, INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES. 4. Section 203(a) of the INA prescribes preference classes for allotment of Familysponsored immigrant visas as follows: FAMILY-SPONSORED PREFERENCES First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) Family- Sponsored All Chargeability Areas Except Those Listed CHINAmainland born INDIA MEXICO PHILIPPINES F1 15AUG07 15AUG07 15AUG07 08NOV94 01FEB05

18 F2A 01SEP13 01SEP13 01SEP13 08AUG13 01SEP13 F2B 15SEP08 15SEP08 15SEP08 01APR95 22APR04 F3 22FEB04 22FEB04 22FEB04 15APR94 15AUG93 F4 01AUG02 01AUG02 01AUG02 15JUL97 22OCT91 *NOTE: For May, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 08AUG13. F2A numbers SUBJECT to percountry limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 08AUG13 and earlier than 01SEP13. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.) 5. Section 203(b) of the INA prescribes preference classes for allotment of Employmentbased immigrant visas as follows: EMPLOYMENT-BASED PREFERENCES First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.) Employment- Based All Chargeability Areas Except Those Listed CHINA - mainland born INDIA MEXICO PHILIPPINES 1st C C C C C

19 2nd C 01JUN12 15APR08 C C 3rd 01JAN15 01MAY11 15JAN04 01JAN15 01JUL07 Other Workers 01JAN15 15NOV05 15JAN04 01JAN15 01JUL07 4th C C C C C Certain Religious Workers C C C C C 5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs C 01MAY13 C C C *Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L , provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year The Department of State has a recorded message with the cut-off date information which can be heard at: (202) This recording is updated on or about the tenth of each month with information on cut-off dates for the following month. B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF MAY Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For May, immigrant numbers in the DV category are available to qualified DV-2015 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: