The US Department of State has issued a Revised Visa Bulletin for October 2015.  According to the DOS:  “This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes. Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process. The Dates for Filing Applications sections (sections 4.B. and 5.B.) which have been adjusted have been identified in Bold type.”

This was a sloppy move by the government since thousands of foreign nationals have relied on the original Visa Bulletin issued on September 9, 2015 and have started preparing their adjustment packages, hired lawyers, and had their medical examinations.  These people will all need to wait before they can file their applications to adjust status.

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When a petition or application in denied by the USCIS, the letter denying the case includes a Form I-290B that the petitioner or applicant can complete to file an appeal of the case to the AAO, a Motion to Reopen or a Motion to Reconsider.  The latter two motions are decided by the USCIS.  The appeal however, lets your case be reviewed by another set of eyes.  Although it depends on the type of case , the odds of having your case overturned on appeal are low.

For example, according to the AAO, in FY 2011 it dismissed 523 appeals, sustained 15 and remanded 12, in 2012 there were 904 dismissals, 17 cases sustained and 11 remands, in FY 2013 there were 751 dismissals, 10 sustained and 25 remanded and in FY 2014 there were 509 dismissed, 16 sustained and 12 remanded.  Feeling lucky?  Then try your hand at appealing an H-1B to the AAO.

When one reads AAO H-1B denial decisions, many of them seem to rubber-stamp the adjudicator’s denial and sometimes the AAO will even add additional reasons to deny the case that the adjudicator had not considered.  Appealing a denied petition to the AAO does not leave the appellant with the feeling that they are necessarily getting a fair shake.

However all is not lost.  If you receive a decision that is unreasonable, under the Administrative Procedures Act, which allows individuals to sue the government for unlawful agency action.  Lawyers with strong H-1B denials have had success escalating such cases to Federal Court.  If the USCIS has made an arbitrary and capricious decision on your case, a federal suit may be a course of action worth pursuing.  It is advisable to consult with an experienced immigration attorney since many factors must be considered prior to filing suit.

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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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