Important Visa Bulletin and I-485 Changes - Tuesday, September 22, 2015 Beth Carlson
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Important Visa Bulletin and I-485 Changes Tuesday, September 22, 2015 Beth Carlson Sarah Kilibarda Sari Long
Agenda
► Introduction
► Important Visa Bulletin & I-485 Filing Changes
► Updates on the F-1 OPT STEM Rule
► New Guidance on Matter of Simeio Solutions, LLC
► Final L-1B Specialized Knowledge Guidance
► Recent BALCA Decisions Impacting PERM
► Key I-9 and E-Verify Reminders
► Q&A
2
Visa Bulletin and I-485 Changes
► Major Change to Visa Bulletin
► Announced September 9
► Starts October 1
► Stems from Obama Administration’s Visa Modernization Proposal
► Change in Visa Bulletin Content
► NOW two charts per Visa Preference Category
► Application Final Action Dates for employment-based preference cases
► Dates for filing employment-based visa applications
► Reading charts with a priority date – what is a priority date?
3
Visa Bulletin and I-485 Changes
► Dates for Filing of Employment-Based Visa Applications
All Chargeability
Employment- CHINA-
Areas Except INDIA MEXICO PHILIPPINES
Based mainland born
Those Listed
1st C C C C C
2nd C 01MAY14 01JUL11 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN15
Other Workers 01SEP15 01JAN07 01JUL05 01SEP15 01JAN15
4th C C C C C
Certain Religious
C C C C C
Workers
5th Targeted
Employment
Areas/ C 01MAY15 C C C
Regional Centers
and Pilot Programs
4
Visa Bulletin and I-485 Changes
► Application Final Action Dates for Employment-Based Preference
Cases
All Chargeability
Employment- CHINA-
Areas Except INDIA MEXICO PHILIPPINES
Based mainland born
Those Listed
1st C C C C C
2nd C 01JAN12 01MAY05 C C
3rd 15AUG15 15OCT11 08MAR04 15AUG15 01JAN07
Other Workers 15AUG15 01JAN06 08MAR04 15AUG15 01JAN07
4th C C C C C
Certain Religious
U U U U U
Workers
5th
Non-Regional
C 08OCT13 C C C
Center
(C5 and T5)
5th
Regional
U U U U U
Center
(I5 and R5)
5
Visa Bulletin and I-485 Changes
► Additional Guidance from State Department
► What does this mean?
► How was this done?
► What will happen in the future with priority dates?
► Additional updates
► Filing I-485 Applications Starting October 1
► Initial Guidance from USCIS
► Cancellation of USCIS Stakeholder Call on 9/16
► Potential litigation?
► Allows for filing of I-765 Employment Authorization and I-131 Advance
Parole Documents with I-485 Applications
6
Visa Bulletin and I-485 Changes
► Documentation Needed for Filing I-485 Applications
► Any changes in documents needed based on new process?
► What documents are needed?
► What about medical exams?
► Birth documents – what are acceptable for filing?
7Visa Bulletin and I-485 Changes
► Unanswered Questions from USCIS with New Process
► Validity of EAD/Advance Parole combination cards
► What if potential I-485 applicant can file based on I-140 approval with
prior employer and new employer is still working on PERM and I-140
applications?
► Will I-485 portability apply to these applications? What are the risks?
► Are AC21 H-1B extensions affected with the new process?
► What if there is a court challenge?
► What will happen when the Obama Administration is no longer in office?
► Will USCIS release FAQs about this new process and outstanding
questions?
8F-1 OPT STEM Rule
► F-1 Optional Practical Training STEM Extension
► Started in April 2008
► Additional 17-month extension of F-1 Optional Practical Training
► Program of study in STEM field
► Must work for E-Verify employer
► Employment Authorization Card
► Allows for change of employer during 17 months
► Allows for additional work authorization with limited number of H-1B
visas available each year
9F-1 OPT STEM Rule
► Recent Developments with Court Challenge
► Washington Alliance of Technology Workers filed lawsuit against the U.S.
Department of Homeland Security
► August 17, 2015 Decision – U.S. District Court for the District of
Columbia
► Court vacated 17-month STEM extension described in 2008 rule
► Court stayed the decision until February 12, 2016
► Allows time for DHS to submit 2008 rule for proper notice and comment
► DHS – Working on Rule in Accordance with Court Decision
► What Will Happen in February 2016?
10Guidance on Matter of Simeio Solutions, LLC
► Precedent decision from AAO
► Change in work location is a “material change”
► Amended H-1B petitions now required for
changes to work location
► Filed vs. approved before move?
► Retroactively applied?
► Applies to moves within the same MSA?
► “Peripatetic in nature”?
11Guidance on Matter of Simeio Solutions, LLC
► Key Compliance Dates:
For Changes to H-1B Work Location, Outside of MSA:
April 9, 2015 –
Prior to April 9, 2015 August 19, 2015 January 15, 2016
August 19, 2015
Employers may Employers MUST file Employers MUST file Deadline for amended
CHOOSE to file amended petitions amended petitions petitions filed for
amended H-1B prior to January 15, before H-1B workers moves occurring
petitions 2016 may change work between April 9 –
locations August 19, 2015
LCA on file for new LCA on file for new LCA on file for new LCA on file for new
location location location location
12Final L-1B Specialized Knowledge Guidance
► L-1B: “Specialized knowledge” intracompany transferees
► New USCIS guidance effective August 31, 2015:
► Special knowledge of the petitioning employer’s product, service,
research, equipment, techniques, management, or other interests and its
applications in international markets that is demonstrably distinct or
uncommon in comparison to that generally found in the particular
industry or within the petitioning employer; or
► Advanced knowledge, which is knowledge or expertise in the
organization’s specific processes and procedures that is not commonly
found in the relevant industry and is greatly developed or further along in
progress, complexity and understanding than that generally found within
the petitioning employer.
13Final L-1B Specialized Knowledge Guidance
► Q1: 27.9% denial rate
► Q2: 30.1% denial rate
► Q3: 21.5% denial rate
► Q4: ?? Q4
14Recent BALCA Decisions and PERM
The Good
► Logic wins (for once): Matter of Mphasis Corporation
► Follow the regulations: Matter of DGN Technologies, Inc.
► Dates are enough: Matter of A Cut Above
15Recent BALCA Decisions and PERM
The Bad
► But…if you include, application can be denied: Matter of A Cut Above
► Letter-perfect applications: Matter of Kams Automotive Inc.
► Typed name not a valid signature: Matters of New York City
Department of Education
16Recent BALCA Decisions and PERM
The Ugly
► Inconsistency
► Prevailing wage issues
► Technical issues
► PERM processing times/denial rates
17I-9 and E-Verify Reminders
► Temporary Protected Status and I-9 completion
► E-Verify reauthorization and government shutdown
18Q&A
19Contact Information
Beth E. Carlson Sarah R. Kilibarda Sari M. Long
Counsel Counsel Associate
+1 612 766 7652 +1 612 766 6929 +1 202 312 7029
beth.carlson@FaegreBD.com sarah.kilibarda@FaegreBD.com sari.long@FaegreBD.com
20You can also read
