Immigration Law Update

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a decision in the Matter of Simeio Solutions, LLC, overruling prior USCIS practice permitting employers to file a new Labor Condition Application (LCA) when an employee changed work locations. An LCA, certifying the prevailing wage for each work location, must be filed with all H-1b petitions.

The AAO ruled that it is no longer acceptable to file an LCA containing the new work location that is not covered in the original H-1b petition. The employer must file an amended H-1b petition and pay the filing fees, when the employee's place of employment changes to an area that was not covered by the original petition and LCA.

In this case, which involved a company providing information technology services, the employer represented that the job was an "in-house project" at the employer's facilities in Long Beach, California, and submitted an LCA for the Long Beach area. Two months after the start date of the employee's H-1b employment, the employer left the Long Beach facility and the USCIS showed up for a site visit and found that no company existed at the address indicated on the H-1b petition. The employer filed a new LCA indicating that the employee was working out of his home address, in a different area of California, and a client address in New Jersey. Both of these new work locations had a wage of over $9,000 more than the wage indicated on the H-1b petition and certified in the original LCA. The AAO footnotes that the new LCA "had to be submitted to the USCIS as part of an amended or new petition before the beneficiary would be permitted to begin working in those places of employment."

The AAO ruled that the change in the employee's places of employment constituted a material change to the terms and conditions of employment as specified in the original H-1b petition. Because the employer failed to file an amended petition with a corresponding LCA, the H-1b petition was revoked.

This decision could have significant impact on companies that move employees to various projects, with new work locations, and previously relied upon the filing of a new LCA to cover these work-sites. Under this AAO ruling, this practice is no longer sufficient and an employer should file an amended H-1b petition for the new work sites.

For more information about H-1b visas and other immigration matters, contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.

H-1B Visas - Be Prepared To Submit Applications on April 1

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (USCIS) will receive more applications than there are available during the first week of April 2015.  There is an annual cap on the number of H-1B visas available: 65,000 for those applicants holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for foreign nationals with a U.S. Master's degree or higher.  In the past several years, the USCIS has conducted a lottery to determine which applicants would be eligible for an H-1B visa due to the great demand.

It is recommended that employers file on or about April 1, 2015 to secure a slot for employment beginning on the fiscal year 2016 that begins on October 1, 2015.  Employers can file H1-B applications no earlier than six months in advance of the anticipated start date, and therefore April 1, marks the beginning of the race for obtaining an H1-B Visa.  The last two fiscal years have seen the cap be filled within the first week of the filing period, resulting in USCIS conducting a lottery on April 10, 2014 and April 7, 2013.  Companies employing students on Optional Practical Training (OPT) with work visas expiring in the months between April and September 2015, may have the opportunity to extend the work of students until October 1 with a timely filed H-1B visa application.

In addition, every H-1B application requires a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL).  The DOL takes approximately one week to certify an LCA.  If an employer has not previously filed an LCA with the DOL, it may take an additional week for the DOL to verify the employer's Federal Employer Identification Number.

It is important for companies to carefully prepare their applications as the USCIS has increased its scrutiny and regularly requests additional evidence from employers.  Employers need to work with counsel to develop detailed explanations as to why the employee qualifies for this visa. 

For more information about H-1B visas and other immigration matters, please contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.  

Joel Pfeffer 412.456.2877 jp@muslaw.com

Elaina Smiley 412.456.2821 es@muslaw.com

Gary M. Sanderson 412.456.2550 gms@muslaw.com

H-1B Visa Update

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (CIS) will receive more applications than there are available visas during the first week of April, 2014. There is a cap on the number of H-1B visas available: 65,000 for those applicants holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for foreign nationals with a U.S. Master's degree or higher. In the past several years, the CIS has conducted a lottery to determine which applicants would be eligible for an H-1B visa due to the great demand.

It is recommended that employers file on or about April 1, 2014, to secure a slot for employment beginning October 1, 2014. Companies employing students on OPT (Optional Practical Training) with work visas expiring in the months between April and September, 2014, may have the opportunity to extend the work of students until October 1 with a timely H-1B visa application filing.

It is important for companies to carefully prepare their applications as the CIS has increased its scrutiny and regularly requests additional evidence from employers. Employers need to work with counsel to develop detailed explanations about why the employee qualifies for this visa.

For more information about H-1B visas and other immigration matters, please contact Joel Pfeffer or Elaina Smiley.