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 Em ploym ent- CHI NA- Areas Except I NDI A MEXI CO PHI LI PPI NES Based m ainland 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 Em ploym ent- CHI NA- Areas Except I NDI A MEXI CO PHI LI PPI NES Based m ainland 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? 7
Visa 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? 8
F-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 9
F-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? 10
Guidance 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”? 11
Guidance 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 12
Final 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. 13
Final L-1B Specialized Knowledge Guidance ► Q1: 27.9% denial rate ► Q2: 30.1% denial rate Q4 Q4 ► Q3: 21.5% denial rate ► Q4: ?? 14
Recent 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 15
Recent 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 16
Recent BALCA Decisions and PERM The Ugly ► Inconsistency ► Prevailing wage issues ► Technical issues ► PERM processing times/denial rates 17
I-9 and E-Verify Reminders ► Temporary Protected Status and I-9 completion ► E-Verify reauthorization and government shutdown 18
Q & A 19
Contact 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 20
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