Articles Posted in Non-Immigrant Visa

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Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

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In a decision issued on April 9, 2015, the Administrative Appeals Office (AAO), which conducts administrative review of certain categories of appeals to denials of immigration benefits, to ensure that immigration law and policy is interpreted accurately and consistently, published a binding ruling in the Matter of Simeio Solutions, LLC, 26 I&N Dec. 542. This decision supports the need to file an amended H-1B petition for any material change to the H-1B employee’s worksite location. The AAO declared that a change in the beneficiary’s worksite location to a geographical location not covered by the original Labor Condition Application (LCA) constitutes a material change for purposes of the immigration regulations, requiring a new LCA that reflects these changes. Furthermore, where 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 certified by the Department of Labor (DOL), with both documents indicating the relevant change.

This means that any time an H-1B beneficiary changes his or her worksite location, it is critically important that the employer reviews the previously submitted petition and LCA to ensure that the employee remains in compliance. A new employment location is covered by an existing LCA if it is within the same Metropolitan Statistical Area (“MSA”) or area of intended employment identified on the existing LCA. Because the prevailing wage requirements are tied to the area of employment, if the employee’s new location is out of the geographical location that is covered by the original LCA, this is considered a material change in the terms and conditions of employment that might affect the employee’s eligibility.

In light of this decision, employers should be aware of the possible impact of changes in the terms and conditions of employment, and consult with immigration counsel to determine if any material changes in work locations have occurred since approval of the H-1B petition that may require the filing of a new or amended H-1B petition.

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The Department of Homeland Security’s (DHS) regulatory change will extend employment authorization eligibility to H-4 spouses of certain H-1B workers who have already started the process of seeking employment-based lawful permanent resident status. Applications for employment authorization for eligible H-4 spouses will be accepted beginning May 26, 2015.

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

(a) Have an approved Form I-140, Immigrant Petition for Alien Worker; or (b) Have been granted H-1B status in the U.S. under the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B workers seeking lawful permanent residence to work and remain in the U.S. beyond the six-year limit.

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The U.S. Department of State announced that starting November 12, 2014, the U.S. will issue extended visas to Chinese business travelers, tourists, students, and exchange visitors in accordance with the new reciprocal agreement between the two countries.

According to the new agreement:

– B-1 and B-2 temporary visitor visas for business and tourism will increase in validity from one to ten years, for multiple entries; and – F-1 student and F-2 dependent visas, M-1 vocational student and M-2 dependent visas, and J-1 exchange visitor and J-2 dependent visas will increase in validity from one to five years, or the length of the program, for multiple entries.

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On May 6, 2014, the U.S. Department of Homeland Security (DHS) announced a proposed rule to amend existing regulations to allow H-4 dependent spouses of certain H-1B workers to request employment authorization. Under current regulations, DHS does not extend employment authorization to H-1B dependents.

The new rule provides for requests for employment authorization from H-4 spouses of H-1B workers who:

• Have an approved Form I-140, Immigrant Petition for Alien Worker; or

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This year’s H-1B cap was reached in a mere 5 days, a rate rapid enough to aggravate members of the Silicon Valley tech industry. The speed at which the cap was met indicates the great need for skilled foreign workers, especially software engineers and the like in Silicon Valley. Tech companies well as companies in numerous other industries readily use H-1B visas and are frustrated that the number given out is capped at 85,000 (including the 20,000 reserved for applicants with a U.S. Master’s degree). USCIS has stated that it received a total of 172,500 H-1B petitions this year.

Industry representatives have for years pushed Congress to increase the quota. A bill already passed by the Senate, though waiting on a vote from the House of Representatives, would increase the number of visas to somewhere between 115,000 and 180,000 per year. However, immigration reform has been met with strong resistance by lawmakers, especially in the Republican-controlled House.

Critics of raising the quota believe an increase would undermine the U.S. workforce. They argue that work visas such as the H-1B allow U.S. employers to hire foreign workers and pay them less than what they would pay U.S. workers. Additionally, the tech industry has been further criticized for its support of “stand-alone” legislation, which would increase the H-1B quota without addressing other issues embedded in immigration reform.

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On January 29, 2014, the Administrative Review Board (the “Board”) decided Administrator, Wage and Hour Div. v. Greater Missouri Medical Pro-Care Providers, Inc., in which it addressed two issues related to the scope of an H-1B investigation by the DOL Wage and Hour Administrator (ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014)). The Board upheld the ALJ’s finding that the Administrator has authority on the basis of a single aggrieved party complaint to investigate potential INA violations of H-1B workers of the same employer who have not filed an H-1B complaint. However, Board reversed the ALJ’s finding that the INA allows the Administrator to investigate H-1B violations that occurred more than twelve months prior to the filing of the compliant that serves as the basis of the investigation.

Investigation of employees not party to the complaint

The Board held that the Administrator can conduct an investigation of all H-1B employees based on a single aggrieved party complaint against the employer. Alena Gay Arat, an H-1B employee of Greater Missouri Medical Pro-Care Providers filed a single aggrieved party complaint alleging that Greater Missouri had (1) failed to pay her the wages required under her LCA, (2) illegally made deductions from her wages, and (3) required her to pay an illegal penalty for ceasing employment prior to the previously agreed upon date.

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If you tried to retrieve your I-94 from the online system at:

and you receive a response that your I-94 is “Not Found,” please review the following checklist to help you check for mistakes and try to enter the information again:

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House Republicans released a draft of principles on immigration reform as House GOP members gathered for their retreat to discuss their position on a range of issues.

Here is a synopsis of the draft on Immigration Reform:

Reforms to Employment-Based Immigration

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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) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. USCIS will provide more detailed information about the H-1B cap next week.