USCIS Introduces New Option to Meet Cap Exemption

USCIS has published a final rule on November 18, 2016 which introduces a fourth option to meet the exemption from the H-1B quota. A nonprofit entity can claim cap exemption by demonstrating that it has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution for the purposes of research or education, and the fundamental activity of the nonprofit entity is to directly contribute to the research of education mission of the institution of higher education.

In the proposed rule, the term “primary purpose” was used instead of “fundamental activity.” However, in response to the public comments which suggested the term “primary purpose” was too restrictive, the Department of Homeland Security (“DHS”) replaced “primary purpose” with “fundamental activity.” DHS expects that this substitution of the terms will allow more nonprofit entities to take advantage of the exemption. In the commentary preceding the regulation, DHS also clarified that if a nonprofit entity is engaged in more than one fundamental activity, it can still  take advantage of the exemption because the exemption requires that at least one of these fundamental activities directly contributes to research or education of an institution of higher education. This rule will go into effect on January 17, 2017.

Read the Final Rule here

USCIS Publishes Final Guidance on When to File H-1B Amendment

USCIS published the final guidance on when to file H-1B Amendments for work location changes. A few key takeaways from the Memo: USCIS will not apply the Simeio decision retroactively meaning they will not pursue adverse action on location changes prior to the decision for which no amendment was filed. An amended petition must be filed by January 15, 2016 for work locations which occurred between April 10, 2015 and August 18, 2015. An amended petition must be filed prior to the beginning of employment at the new location if the work location change occurred on or after August 19, 2015.

Read the full Memo here.

USCIS Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision

On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Worker (LCA) is required to a change in the H-1B worker’s worksite location. Specifically, the decision stated:

1.    When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
2.    When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.
This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite.

See the full USCIS Guidance at http://www.aila.org/File/DownloadEmbeddedFile/64527


AAO Approves Extreme Hardship Waiver

An appeal of an extreme hardship waiver application was approved by the Administrative Appeals Office (AAO) after it was initially denied by the Field Office Director due to the applicant’s failure to demonstrate that his spouse would experience extreme hardship given his inadmissibility. The applicant, a citizen of the Gambia, was found to be inadmissable to the U.S. for having obtained a non-immigrant tourist visa through misrepresentation. On his nonimmigrant visa application, the applicant indicated that he was currently married and living with his spouse. Later, however, he admitted that though he was married, he and his wife had been legally separated for nearly 3 years with his wife living in Great Britain. By stating that he was married and living with his wife, the applicant led the embassy to believe that he had close family ties to his home country, showing that he had intentions to return once his visa expired, which resulted in the issuance of a tourist visa.

Because the applicant was found to be inadmissable, the burden fell on him to establish that a grant of a waiver of inadmissability was warranted. To do so, the applicant was required to show substantial evidence that his U.S. citizen spouse would suffer extreme hardship if the applicant’s waiver request was denied and he was deported. Such evidence included claims that the U.S. citizen spouse would experience medical, psychological, and financial difficulties without the applicant present. The applicant provided a record that contained consistent evidence indicating the spouse has suffered from traumatic events in her childhood, such as sexual abuse, physical injuries, neglect, and emotional abuse as well as evidence of the spouse’s abusive first marriage, which have resulted in her psychological reliance on the applicant. The spouse also explained that she had two surgeries and that additional complications may occur in the future. Due to her medical condition, she has a hard time paying for her treatment and infusions and relies on the applicant for financial assistance. The applicant has additionally demonstrated that the spouse would experience extreme hardship upon relocation to the Gambia as that would entail severing her family ties with her children and parents, relinquishing her employment in the U.S., communication issues as English is not widely spoken in the applicant’s village, no knowledge of the Gambian culture, and insufficient educational facilities as well as clinics for her treatments and infusions in the Gambi.

Due to the evidence provided, the AAO established that the extreme hardship that the applicant’s U.S. citizen spouse would suffer outweigh the negative factors, including the applicant’ misrepresentation as well as his period of unlawful status in the U.S. To read more about the AAO approval of this waiver, please [click here].