According to a USCIS News Alert:  “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.”

The Alert also includes the following important information:

Filing Amended H-1B Petitions

  • 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.”

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According to a USCIS News Alert:  “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.”

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According to a USCIS News Release:  “USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.”

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Today our office received the first receipt notices for cap-subject H-1B petitions that were filed.  A receipt notice means that a petition was accepted for adjudication.  Hopefully more are on the way.

Unlike high school seniors waiting for college acceptance materials, where they assume a big package is good news and contains enrollment materials and a single letter signifies a rejection notice, in the case of H-1Bs the reverse is true.  In the coming weeks employers and attorneys will be receiving the dreaded large envelopes from the USCIS for those cases that did not win the lottery.

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According to a USCIS News Release:  “USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.”

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For the past few years, our office has seen an uptick in employer demand for H-1B skilled worker petitions.  In fact, this year we filed more H-1B cap-subject petitions than any other since we started our firm fifteen years ago.  We are hearing similar stories from our colleagues.  It is therefore likely that the cap will be exhausted tomorrow.  The regulations require that the USCIS accept petitions for the first week and if the cap has been exceeded, it will conduct a random lottery to determine which cases will be adjudicated.  A few facts of interest:

1.  There are 65,000 cap-subject H-1Bs available for the fiscal year plus an additional 20,000 for those who have US Master degrees (Master Cap);

2.  If the number of H-1B petitions and Master Cap petitions received exceeds the cap, then  the government will first exhaust the 65,000 and include all eligible petitions and then conduct a lottery for the 20,000 Master Cap.  If a Master Cap petition is not selected in the general lottery, it will be entered into the separate Master Cap lottery.

3.  Premium Processing for cap-subject H-1Bs may not begin until May 11, 2015, therefore the 15 day clock would start on that date.

4.  Having filed an H-1B petition using the Premium Processing Service does not increase the odds of the case being selected in the lottery.

5.  For cases that are accepted, the USCIS will process the filing fee check(s) and stamp the receipt number on the back of the check.  Therefore lawyers or employers who paid by the filing fees by check can check their bank statements online to know whether petitions have been accepted.  A USCIS Receipt Notice will of course follow in the mail.

6.  For cases that are rejected, the entire petition and supporting documents, along with the filing fee checks will be returned.

As I write every year, it seems counter-intuitive that our country resorts to a lottery where we end up asking the best and brightest skilled workers from around the world to either return to or remain in their home countries.  This includes talented scientists, architects, software engineers and others who could contribute so much to their employers and to the country as a whole.

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