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Archive for the ‘H-1B Visas’ Category

H-1B RFE’s ——Who is to Blame?

Friday, October 9th, 2015

News_bannerWith the rash of RFE’s increasing year by year, this article is extremely informative and useful.

The important take away…..Work with evaluators that analyze USCIS policy and trends and that understand the education that is required for the type of visa being applied for.  Oftentimes there is a rush to secure an evaluation before nailing down the job title and job description with the client; this is a mistake.

So, whose fault is it REALLY and why does it matter whose fault it is anyway?

Sometimes it is the attorney or evaluators fault, but sometimes it is CIS’s fault.

Sometimes it is the fault of the evaluation but not the evaluator.

Sometimes it is CIS’s fault.

Sometimes it is the candidate’s fault.

Sometimes it is no one’s fault at all.

For more, refer here

We thank Sheila Danzig,, for this excellent article.

When to File an Amended H-1B Petition: USCIS Offers Additional Guidance

Monday, June 1st, 2015

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On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:

  1. When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 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.

This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. H-1B petitioners should follow the guidance below.

When You Must File an Amended Petition

You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.

Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

When You Do NOT Need to File an Amended Petition

  • A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
  • Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
  • Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
    • The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
    • The H-1B employees spend little time at any one location; or
    • The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.

When you do need to File an Amended H-1B Petition

  • If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.
  • If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees by August 19, 2015.
  • If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
  • If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
  • If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005) for similar instructions about portability petitions.

To the extent possible, you should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.

This ruling affects a lot of employers in the consulting industry, where frequent employee relocations are necessary. Those employers must be especially careful in tracking their H-1B employees’ planned moves and make sure a new LCA and amended H-1B petition are filed before August 19, 2015 for pre-May 21 relocations and before they start work at a new location for post-May 21 relocations.

For More Information

If you have any questions about filing an amended H-1B petition, please visit our Customer Contact Center.

Our office is available to assist you with your H-1B filings.  Please contact us at or call 562 612.3996.

USCIS Announces H-4 Spouses Eligible to Apply for Work Authorization on May 26, 2015

Wednesday, February 25th, 2015


It’s been a long wait for this to become a proposed rule with an approximate effective date (following Federal Register publication and public comment) of May 26, 2015.  It’s still not automatic work authorization incident to H-1B dependent status, but it’s certainly better than none at all, right!  So, how does an H-4 spouse qualify?

You obviously must be the spouse of an H-1B visa holder who either has an approved I-140 petition and is unable to file for permanent residency because the priority date is backlogged….OR,  your spouse is the beneficiary of an approved H-1B extension past the 6th year max-out based upon an unexpired PERM Labor Certification or an  I-140 Immigrant Petition that has been pending for at least 365 days.

We anticipate that this will certainly fuel earlier PERM case filings for those H-1B applicants who have spouses that wish to work and contribute.  Please contact our office if you have any questions or wish to file for spouse work authorization.

Refer to USCIS Announcement




H-1B Visas – The Job Description and Degree Requirement

Thursday, January 29th, 2015

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It’s almost that time of year again for H-1B filing season FY 2016 (commencing April 1, 2015), and  it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying  potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.

The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent.  For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.

Small to medium-size companies are frequently asked to justify why the position  requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for their green-card sponsorship (permanent residency), it is essential that the degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which they will file their labor certification, the first step in the green-card process.

USCIS now requires very detailed job descriptions for H-1B visa petitions that contain the position summary, duties and responsibilities, as well as the percentage allocation spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET occupational classification system and the Occupational Outlook Handbook, which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

Discuss your H-1B requirements as well as any other business immigration matters by contacting us at, or call 562 612.3996.

Obama, High-Skilled Visa Immigration and Silicon Valley

Sunday, January 25th, 2015

The U.S. technology industry might finally get the immigration reform that it wants. Bipartisan Senate groups introduced two tech-focused bills this month.  The Immigration Innovation Act – which increases the cap on H-1B Visas from 65,000 to 115,000, eliminates per-country limits on visa petitioners and lets spouses of H-1B visa holders work – came out of conversations with corporate tech leaders.

The Startup Act, which already has been introduced on three earlier occasions, creates a new visa category for foreign entrepreneurs.

Jobs_iStock_000016785771XSmall (2)For more:


Executive Actions on Immigration

Sunday, December 7th, 2014

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On November 20, 2014, President Obama announced efforts to retool critical aspects of the immigration system—how we enforce immigration laws, how we process immigration benefits, how we encourage further business innovation, and how we welcome immigrants to this nation.

Following the address, executive agencies made available intra-agency memoranda and fact sheets detailing specific actions that have already been taken, or will be taken in the future in ten areas within the confines of the law. These actions generally involve border security, the current unlawfully present population, or future legal immigration.

Below we link to Fact Sheets that address the details that we are aware of at this time of the 10 Executive Action Initiatives with links to the memoranda. Additional guidance will be forthcoming.

The expansion of the DACA program that has now removed the age restriction and increases employment authorization from 2 year to 3-year increments, is expected to go into effect on or about February 20, 2015. The implementation of DAPA, the Deferred Action for Parental Accountability, that allows parents of US citizens and lawful permanent residents who have been present in the country since January 1, 2010 to request deferred action and employment authorization, is expected to roll out approximately mid-May 2015.


Should you have questions at this time or would like to retain our office to assist you or your employees with their immigration matters, please contact us at or call 562 612.3996.


The Facts: Fixing a Broken Immigration System Through Executive Action

Friday, November 21st, 2014

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We applaud President Obama’s announcement of  broad executive action to offer temporary relief from deportation to millions of undocumented immigrants, stating that the separation of families or the oppression of low-wage immigrant workers is “not who we are as Americans.”

Concurrent with the televised nationwide presidential address last night, the Department of Homeland Security (DHS) Secretary issued a series of memoranda outlining the various facets of the programs and policies which would constitute, in total, “executive action” relating to immigration matters such as:  Revising Removal Priorities, ending Secure Communities and replacing it with a New Priority Enforcement Program, expanding DACA, extending DACA to Parents of US citizens and Permanent Residents, revising parole rules, expanding Provisional Waivers to spouses and children, modernizing high-skilled business-related immigration, and more.  We link to this information above.

Additional specific information on the initiatives contained in the Executive Action taken by President Obama can be found here




DHS Announces Proposed Rulemaking for H-4 Spouse Work Authorization

Wednesday, May 7th, 2014

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Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.  Refer to AC 21 12/27/2005 Aytes Memo for details.

Proposal to Enhance Opportunities for Highly-Skilled Workers: H-1B1 (Chile and Singapore) and E-3

Specifically, the change to the regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer.
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through  All public comments will be considered before the final rules are published and go into effect.  We will keep you posted on next steps when this actually becomes effective.

The DHS Press Release




USCIS Announces H-1B FY 2015 Cap has been met

Monday, April 7th, 2014

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U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

Avoiding the H-1B Cap

Wednesday, January 22nd, 2014

iStock_GlobeAirplanePP_000012052479XSmallIf you Previously had an H-1B for Less than 6 Years

Pursuant to § 212(g)7) of the The Act, if you had an H-1B in the past and were in the USA for less than 6 years, you may be eligible to recoup the time that is remaining on the 6-year maximum period of stay to accept employment with a new employer – without being counted against the cap.  An example of this would be someone who works for 3 years in H-1B classification and decides to go back to school on an F-1 student visa.  This individual would be eligible to apply for an H-1B for the remaining 3 years at any time of the year.

If you are abroad for at least one year, you have the choice to either apply for a “new” cap H-1B  for a full 6-year period, or take advantage of the remainder option if you previously had an H-1B.

H-1B 7th Year Extensions – How This Works

If you are the beneficiary of a labor certification or an I-140 petition that was filed 1 year prior to your 6th year in H-1B status, pursuant to §106 of AC21, you are permitted to file for a 7th year extension.  You are also permitted, according to §104(c) of AC21, to apply for a 3-year extension of your H-1B when you have an approved I-140 petition and are unable to move forward with filing your permanent residency case due to employment-based immigrant visa country limits (referred to as retrogression).

If you are in the US and out of status due to a layoff, or are abroad, you are entitled to a 7th year extension of your H-1B if your labor certification or I-140 petition was filed before your 6th year in H-1B status with either the sponsoring employer, or with a new employer.  You will more than likely be required to consular process your case in these scenarios.

It is recommended that you seek the advice of a skilled immigration professional with the above cases as they are complex in nature.

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