More H-1B Amendments Needed, With New Deadline of August 19, 2015; Tip for Employment Authorization for H-4 Spouses

There’s news to report in the world of H-1B employment. These items affect both (a) employers which are subject to the H-1B cap so have to file on April 1 to get into the annual H-1B lottery, and (b) colleges and universities and affiliated nonprofits which are exempt from the H-1B cap so can obtain H-1B approvals any time of year.

Matter of Simeio Solutions, LLC - More H-1B Amendments Required

Employers are required to file an amended H-1B petition if there is a material change in the employment. There have been questions about the meaning of “material change” for H-1B purposes. One type of change that may or may not be “material” is a change in the location of employment.  H-1B approval is specific to the work locations described in the labor condition approval (LCA) approved by the U.S. Department of Labor (DOL) and is based on prevailing wage compliance for those specific geographic areas.  So the location of employment is material.  The question is whether a particular change of location is material to H-1B compliance and requires the filing of an amended H-1B petition.

In April 2015, the immigration appeals unit in the U.S. Department of Homeland Security (DHS) ruled that if a change in the location of employment changes material information in the LCA, then it’s a material change that requires both a new LCA and a new H-1B petition. Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).  On May 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued new guidance to employers about when amended H-1B petitions are required in light of the Simeio decision. There is a new deadline of August 19, 2015 to file amended H-1B petitions for H-1B cases currently supported by LCAs that were obtained to reflect material changes after the H-1Bs were approved.

H-4 Spouses Must Be Physically Present In The U.S. To Apply For Employment Authorization

Effective May 26, 2015, USCIS is accepting I-765 applications for employment authorization by qualifying spouses of H-1B workers who are being sponsored for permanent resident status (green card). One of the requirements is that the applicant must be physically present in the United States in H-4 status when the application is filed with USCIS.  This point is not mentioned in the USCIS application instructions.  If the H-4 spouse is abroad when the I-765 is filed, the spouse will have to apply again after returning to the United States and pay the filing fee again ($380).   The applicant also is required to attend a biometrics appointment near home in the United States before USCIS can issue the employment authorization document (EAD).  After the I-765 is filed and the biometrics are completed, the spouse may spend time abroad and then return to start work after the EAD is issued.

Post by Leigh Cole, Esq.

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