We previously informed our readers and clients of the changing obligations on H-1B employers who relocate their H-1B workers to new worksites.  This week, USCIS revised and reissued its policy guidance on how employers must handle H-1B worksite changes, and also extended until January 15, 2016, the “safe harbor” period for notifying of changes that have already occurred.

As background, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) decided that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition.  Following this decision, USCIS issued an interim policy memo that required amended petitions for workers who had changed work locations before May 21, 2015, to be filed no later than August 19, 2015.

On July 21, 2015, USCIS issued a revised and final policy memo detailing employer responsibilities related to H-1B worksite changes.  The memo requires an H-1B employer to take certain actions depending on when the H-1B worksite changed or will change:

• Change On or Before April 9, 2015 – If the H-1B worksite changed on or before April 9, 2015, the employer may choose to file an amended petition before January 15, 2016.  If the employer does not file a new petition, USCIS will generally not take any new adverse action, such as revocation of the current petition or denial of an extension, due to the failure to file an amendment.  However, USCIS will continue to pursue any adverse actions commenced prior to July 21, 2015.
• Change Between April 9 and August 18, 2015 – If the H-1B worksite changes between April 9 and August 18, 2015, the employer must file an amended petition before January 15, 2016.  If the employer does not file an amended petition within this “safe harbor” period, the employer will be out of compliance with the H-1B regulations, which could result in revocation of the current petition among other penalties for noncompliance.  In addition, the H-1B worker will not be maintaining lawful immigration status and will be subject to adverse action.
• Change On or After August 19, 2015 – If the H-1B worksite changes on or after August 19, 2015, the employer must file an amended petition BEFORE the H-1B worker starts working at the new worksite.  Again, failure to file the required amendment will subject the employer to penalties for non-compliance with the H-1B regulations and, critically, will result in the worker being in out of lawful H-1B status and subject to adverse action, such as denial of a subsequent request for change of status or extension of stay or, in the worst case, removal from the United States.

We strongly suggest that employers carefully review the current work locations for their H-1B workers for any discrepancies between the work location(s) listed on the LCA/H-1B petition and the actual work location.

In addition, because amended petitions must be filed before the worker starts at the new location, it is critical that employers identify potential work location changes as far as possible in advance of the change.  Due to LCA processing times, it takes a minimum of seven business days to prepare and file an H-1B petition, and this time must be taken into account when determining the worker’s start date at the new location

As always, please contact us with any questions.

USCIS has announced that, as of July 13, 2015, it will resume "premium processing" of H-1B extension petitions.

We previously alerted our readers that USCIS had suspended the "premium processing" service for H-1B extensions on May 26, 2015, so that the agency could efficiently implement the H-4 Work Authorization (EAD) rule.

The premium processing suspension was initially scheduled to last through July 27, 2015. However, USCIS received fewer H-4 Work Authorization applications than expected and has determined that it can effectively handle the current H-4 EAD and premium processing workload.

With this announcement, premium processing requests for H-1B petitions requesting an extension of stay for the H-1B worker may be filed concurrently with any petition filed on or after July 13, 2015.

Additionally, employers who filed H-1B extension petitions during the suspension period may "upgrade" those petitions to premium processing as of July 13, 2015.

As always, please contact us with any questions.

The Department of State has released the August 2015 Visa Bulletin, a monthly report detailing the current cutoff dates for the filing or approval of green card applications in the various U.S. permanent visa categories. A person who is otherwise eligible to apply for or be granted a green card in the U.S., must have a current priority date as specified in the Visa Bulletin.

As in July, the August 2015 Visa Bulletin shows slow forward movement in nearly all categories, although there was major retrogression of priority dates in one category.

As of August 1, 2015, all of the family-based preference categories advance at least a few weeks with the exception of most categories for nationals of the Mexico and the Philippines.

The priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines advance to a nearly current July 15, 2015. EB-3 India advances four months to June 1, 2004. Nationals of the Philippines get some good news this month as the EB-3 category changes completely unavailable to available for those with priority dates earlier than June 1, 2004.

EB-2 and EB-3 continues to be a juggling act for nationals of China as the EB-3 priority date significantly retrogresses to June 1, 2004, primarily due to heavy demand caused by EB-2 to EB-3 conversions. The employment-based second (EB-2) preference advances to December 15, 2013.

The priority date in the EB-2 category for Indian nationals again holds steady at October 1, 2008. As we explained in our last review of the visa bulletin, worldwide demand in the EB-2 category has exploded in recent months leaving fewer unused visas “falling down” to EB-2 India, and there might not be any further advancement of EB-2 India for the rest of the fiscal year.

You can view the visa bulletin in its entirety below. Please contact us with any questions.

As the calendar turns to July, we take a look at the July 2015 Visa Bulletin, a monthly report detailing the current cutoff dates for the filing or approval of green card applications in the various U.S. permanent visa categories. A person who is otherwise eligible to apply for or be granted a green card in the U.S., must have a current priority date as specified in the Visa Bulletin.

The July 2015 Visa Bulletin shows at least some forward movement in nearly all categories, although the pace of advancement seems to be slowing as the end of the fiscal year approaches.

As of July 1, 2015, all of the family-based preference categories advance between three and six weeks with the exception of the family-based first (FB-1) preference category for nationals of the Mexico and the Philippines, which will not advance at all from November 15, 1994, and March 1, 2000, respectively.

The priority dates in the employment-based third (EB-3) preference for all countries except India, China, and the Philippines advance another six weeks to April 1, 2015, and remain nearly current. EB-3 India advances only two weeks to February 1, 2004. There is more bad news for nationals of the Philippines as the EB-3 category becomes completely unavailable.

The flip-flop between EB-2 and EB-3 continues for nationals of China as the EB-3 priority date does not advance, but the employment-based second (EB-2) preference advances another four months to October 1, 2013.

The priority date in the EB-2 category for Indian nationals remains at October 1, 2008. According to Charles Oppenheim, Chief of Visa Control and Reporting at the U.S. State Department, in a regular meeting with the American Immigration Lawyers Association, worldwide demand in the EB-2 category has exploded in recent months leaving fewer unused visas “falling down” to EB-2 India. Unless the EB-2 worldwide demand subsides, Mr. Oppenheim does not expect any further advancement of EB-2 India for the rest of the fiscal year.

You can view the visa bulletin in its entirety below. Please contact us with any questions.