U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, instructing when an employer should  file an amended or new H-1B petition following Matter of Simeio Solutions, LLC (Simeio). In Simeio, a precedent decision issued on April 9, 2015, the Administrative Appeals Office concluded that changes in the H-1B beneficiary’s places of employment, resulting in the obtaining of a new Labor Condition Application (LCA), constituted a material change to the terms and conditions of employment as specified in the original petition, thus necessitating the filing of an amended petition.

What is significant about the final guidance is that it extended the deadline to file an amended H-1B petition to January 15, 2016 from the previously suggested deadline of August 15, 2015. It also sends a mixed signal about whether USCIS will take punitive action regarding moves prior to Simeio that were not followed by the filing of an amended H-1B petition.

USCIS applies Simeio in its final guidance, by confirming that a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location.  Prior to Simeio, employers relied on informal USCIS guidance indicating that so long as a new LCA was obtained prior to placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO explicitly stated in Simeio, footnote 7, that the Hernandez guidance has been superseded. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.

The final guidance also notes, as the draft guidance did, regarding when a petitioner does not need to file an amended or new H-1B petition. If a petitioner’s H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.

The language in the USCIS guidance is similar, whether by design or by coincidence,  to what I had suggested in prior blogs entitled When An Amended Petition Is Not Required Even After Matter Of Simeio Solutionsand AAO Firmly Tethers H-1B Workers To An LCA Like Dog Is To A Leash, and this is encouraging since the USCIS can be receptive to a lawyer’s blog relating to important immigration policy. Here is the example that I provided regarding when a new move would not trigger a new LCA and thus obviate the filing of an H-1B amendment:

So a move to a new job location within New York City would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.

The final guidance similarly states:

For example, an H-1B employee presently authorized to work at a location within the New York City metropolitan statistical area (NYC) may not trigger the needs for a new LCA if merely transferred to a new worksite in NYC, but the petitioner would still need to post the previously obtained LCA at the new work location. See 20 CFR 655.734. This is required regardless of whether an entire office moved from one location to another within NYC, or just the one H-1B employee.

Similarly, with respect to short-term placements under certain circumstances and as suggested in my prior blog, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.

Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered “non-worksite” if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is “peripatetic in nature,” such as in a situation where the employee’s job is primarily at one location but he or she occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.)”

Although in its prior draft guidance, USCIS said that Simeio would apply retroactively, the final guidance is more equivocal and sends a mixed signal. On the one hand, the final guidance states that the USCIS would “generally” not take adverse actions against employers that fail to file amended petitions based on moves that may have triggered a new LCA prior to April 9, 2015. On the other hand, the USCIS gives employers a “safe harbor period” in which they may choose to file amended H-1B petitions by January 15, 2016. With respect to moves that have taken place after April 9, 2015 but prior to August 19, 2015, amended H-1B petitions must be filed by the new deadline of January 15, 2016. Regarding any moves after August 19, 2015, the employer must file an amended or new H-1B petition before the H-1B employee starts working at the new place of employment not covered by an existing approved H-1B petition, and not subject to any of the above discussed exceptions to filing a new LCA.

While the USCIS has indicated that it will not generally take adverse action against employers for moves that did not result in the filing of an amended H-1B petition prior to April 9, 2015, employers should file  amended petition out of an abundance of caution. If an employer chooses not to file, and take advantage of the safe harbor period until January 15, 2016 by filing before that deadline, it will be doing so at its own peril, and any adverse action taken, may result in a finding that the H-1B worker did not maintain status. The Department of Labor may also factor the failure to file an amended H-1B petition when penalizing an employer for violations under the LCA regulations at 20 CFR 655. Moreover, neither the Department of State or Customs and Border Protection may be bound by the USCIS final guidance regarding not taking adverse action against an employer.

If the adverse action is taken against the employer based on a retroactive application of Simeio, can the employer challenge it? Generally, the retroactive application of a rule created through agency adjudication is disfavored. In Velasquez-Garcia v. Holder,  760 F.3d 571 (7th Cir. 2014), the Seventh Circuit considered whether the “sought to acquire” standard for a child’s age to get protected under the Child Status Protection Act by the BIA in Matter of O. Vazquez could be applied retroactively. The Seventh Circuit in Velasquez-Garcia applied the following factors: (1) Whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Under the criteria established in Velasquez-Garcia, it can certainly be said that Simeio is a case of first impression under the first consideration and that the retroactive application of Simeio would impose a great burden on an employer under the fourth consideration. What is less clear is whether Simeio represents an abrupt departure from well established past practice under the second consideration and whether there was a former rule that employers relied on. The Efren Hernandez letter of October 23, 2003, was hardly a rule as it did not constitute an agency decision or even a form instruction, and despite the existence of the Hernandez letter, there were many instances when DOS recommended revocation of an H-1B petition where the job location had changed, and the USCIS often went ahead and revoked such petitions. There were also other instances when the the USCIS after a site visit revoked H-1B petitions when the H-1B worker was no longer at the original location.  The Hernandez letter is thus a relatively thin reed to rest on. Under the fifth consideration, the government will probablyhave success in arguing that there is a general interest in uniformly applying immigration law, and unlike the CSPA that has a remedial purpose in protecting the age of a child, filing amended H-1B petitions ensures that employers have properly accounted for changes in employment not previously disclosed in the original H-1B petition.  In sum, an employer may not have a clear cut basis in challenging the retroactive application of Simeio, and this is all the more reason for employers to take advantage of the safe harbor and file amended H-1B petitions for moves made even prior to  Simeio.  Furthermore, although publishing a rule through notice and comment under the Administrative Procedures Act would have been more appropriate, the government may be able to successfully argue that the promulgation of a rule was not necessary as the final guidance was a clarification on how to enforce Simeio.

The final guidance is not all doom and gloom, and we can end on a more upbeat note. Although the burdens will be high for employers in filing amendmentsand Simeo was unnecessary, the final guidance makes clear that an H-1B employee can start working at the new location after the H-1B amendment has been filed. If an amendment is still pending, the final guidance makes reference to the Memorandum from Michael Cronin (June 19, 2001) that allows H-1B employees who have ported to new employers and have only receipt notices, to be admitted into the US based on a valid H-1B visa stamp and that the validity date of the prior H-1B approval. Thus, an H-1B worker who is the subject of an H-1B amended petition can similarly be admitted into the United States on the basis of the receipt notice, and the prior H-1B validity date, provided the individual also has an H-B visa stamp. Also, just as serial H-1B porting is allowed, so can H-1B amendments be filed serially if job locations change before the approval of the prior amendment, although the denial of any H-1B petition will result in the denial of all successive requests to amend. This would only happen if the H-1B beneficiary’s status expired while successive amendments were pending. If an amendment is denied, but the original petition is still valid, the H-1B employee may return to the place of employment covered by the original petitionprovided that employee is able to maintain valid status at the original place of employment.

(The information contained in this blog is of a generalized nature and doe snot constitute legal advice).

Update on Indian Three–Year Degrees and Postgraduate Diplomas

The greatest bane for green card aspirants with Indian degrees is the uncertainty that they will be recognized as single source degrees. If an Indian degree is recognized as the single source equivalent of a US four-year bachelor’s degree, it can provide the basis for an I-140 immigrant visa petition under the employment-based second preference (EB-2) for permanent residency. If an Indian degree cannot be recognized as a single source four-year degree, the potential green card candidate slides into the employment-based third preference (EB-3). While both the India EB-2 and EB-3 are moving at a snail’s pace, there is still a dramatic difference between the EB-2 and EB-3 for India. One sponsored by an employer in the India EB-2 can hope to get a green card  within 10 years, but one caught in the India EB-3 would need to wait for several decades!

A three-year Indian degree on its own will never make it into EB-2 as it is not considered the equivalent of a four-year US degree. See Matter of Shah, 17 I&N Dec. at 244 (Reg. Comm. 1977). Till recently, even a three-year degree combined with a post-graduate diploma (PGD), even if technically equivalent to a US bachelor’s degree,  was not considered a single source degree. To be classified under the EB-2  pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign four-year single source bachelor’s degree equivalent to a US degree plus five years of post baccalaureate experience. Ron Wada, who is the undisputed guru of degree equivalency issues, reports that in some instances the USCIS has been recognizing that an Indian three year degree followed by a post graduate diploma may qualify as an exception to the “single-source degree rule.” See Wada, The Nth Degree: Issues and Case Studies In Degree Equivalency – 2015 Update, 20 Bender’s Immigration Bulletin 475, May 15, 2015.

Not all combinations of three-year bachelor’s degrees and post graduate diplomas will qualify under this exception and thus be found to be comparable to a US bachelor’s degree. The Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) has to confirm that the PGD should either be issued by an accredited university recognized by the University Grants Commission or should be an institution approved by the All-India Council for Technical Education (AICTE).

In most of the unpublished decision of the Administrative Appeals Office (AAO) involving non-university PGDs found through a computerized  search, such as for example Matter of X (identifying information redacted), 2013 Immigr. Rptr. LEXIS 2177, 2013 WL 5296297 (INS), the following extract is worth noting:

According to EDGE, a three-year Bachelor of Science degree from India is comparable to “two to three years of university study in the United States.” EDGE further discusses postgraduate diplomas, for which the entrance requirement is completion of a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma following a two-year bachelor’s degree represents attainment of a level of education comparable to one year of university study in the United States. EDGE also states that a postgraduate diploma following a three-year bachelor’s degree represents attainment of a level of education comparable to a bachelor’s degree in the United States. However, the “Advice to Author Notes” section states:

Postgraduate Diplomas should be issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE). Some students complete PGDs over two years on a part-time basis. When examining the Postgraduate Diploma, note the entrance requirement and be careful not to confuse the PGD awarded after the Higher Secondary Certificate with the PGD awarded after the three-year bachelor’s degree.

The evidence in the record on appeal did not establish that the beneficiary’s postgraduate diploma was issued by an accredited university or institution approved by AICTE, or that a two- or three-year bachelor’s degree was required for admission into the program of study

This AAO decision demonstrates that not only must the PGD be approved by AICTE, but the entrance requirement for a PGD must also be after the completion of a two or three year bachelor’s degree, and not after the completion of high school.

Not all PGDs will qualify and one must carefully check whether it has been recognized by AICTE. For instance, courses at the ever familiar NIITor Aptech institutes in India are not approved by AICTE. Nor are most of  the programs offered at the Center for Development of Advance Computing (CDAC), unless the CDAC courses are offered in conjunction with universities  and result in degrees.  It is very important to get the PGD assessed by an experienced credential evaluation service, which should check that the PGD has not only been recognized by AICTE but admits students after they have generally completed a three-year degree.

The USCIS has always been niggardly in recognizing Indian degrees, especially three-year degrees, so as to qualify under the EB-2. The recent recognition of some non-university PGDs, obtained after a three year degree, provides some respite to many who would otherwise be caught in the endless India EB-3 backlogs. A  recent Times of India article reveals that India Inc. invested $15 billion in the United States and created 91,000 jobs. Despite this enormous boost to the US economy, Congress has done nothing to reduce the EB-2 and EB-3 backlogs for India, and the USCIS has been slow to recognize that Indian degrees, or combinations, equate to comparable US four-year degrees. The recognition of certain PGDs  following a three-year degree program is therefore welcome, but the USCIS must still go a long way in being more generous in welcoming skilled Indian nationals to the United States.

 (The author thanks Natalie Araujo of the The Trustforte Corporation for sharing some of her insights)

History Will Trump Donald

Donald Trump, the billionaire real estate mogul and GOP Presidential candidate, has called Mexican immigrants rapists and drug dealers who are demoralizing the country. His popularity among a certain section in the Republican party has surged as a result, and Trump continues to stand by his demagogy.

Trump’s latest foray into immigrant scapegoating for political gain is nothing knew. Anti-immigration movements have been around since this nation’s inception, and Trump is following in their footsteps. The good news is that they became irrelevant very quickly, and so will Trump.

Between 1830 and 1860, when there was virtually unrestricted immigration, 4.5 million immigrants arrived into the United States. Amongst them were Irish and Germans who were Catholic, and there was an over simplified view that Catholics would never be good citizens as they were beholden to the Pope and subject to the orders from the church. Samuel Morse, well known as the inventor of the telegraph and Morse code, was also a nutty xenophobe, who warned:


How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

TheKnow Nothing movement emerged in the 1850s with the objective of preventing the Irish from participating in national affairs. One of the pamphlets of the Know Nothing party warned:

It is notorious that the grossest frauds have been practiced on our naturalization laws, and that thousands and tens of thousands have every year deposited votes in the ballot box, who could not only not read them, and knew nothing of the nature of the business in which they were engaged, but who had not been six months in the country, and, in many cases, hardly six days.

After the Irish got assimilated, Jews and Italians in the latter part of the 19th century became the targets of accusations that they could never become 100 percent Americans. A leading sociologist of his time Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.”

Trump’s remarksover 120 years later about Mexicans are not too different, and in the same vein as the anti-immigrant demagogues that preceded him:

“When Mexico sends its people, they’re not sending the best,” Trump said last month when he announced that he was seeking the Republican nomination. “They’re sending people that have lots of problems, and they’re bringing those problems. They’re bringing drugs. They’re bringing crime. They’re rapists and some, I assume, are good people, but I speak to border guards, and they’re telling us what we’re getting.”

The good news is that many corporations, including Macy’s, NBC, ESPN and two celebrity chefs, have severed business ties with the real estate magnate. While Trump’s popularity may grow with a certain segment within the Republican party, he and his party should always remember the drubbing that Mitt Romney got in the 2012 Presidential elections when he advocated that immigrants “self deport” from the United States. Trump will viciously sue for breach of contract, and it is hoped that courts will be sympathetic to possible defenses that the contracts may have became impossible to follow through by the other party caused by Trump’s inflammatory remarks. Any business association with Trump will cause embarrassment to the other contracting party resulting in business losses, it can be argued.

Trump’s hypocrisy also comes through loud and clear since many of his properties have been built on the backs of the hard and honest labor of immigrants, and the current construction of a luxury hotel in Washington DC may have undocumented immigrants, according to a Washington Post article.  In response to whether he has hired undocumented workers, Trump cavalierly and insensitively said in a CNN interview, “I can’t guarantee it. … I wish they’d give us the names. We would get rid of them immediately.” This statement is legally problematic. An employer verifies all employees on Form I-9, and the USCIS Handbook, M-274, provides clear instructions to employers.  If the documents that were submitted by the new hire are facially valid, an employer does not have a clear basis to terminate a worker soley based on a tip that the worker is not legally in the country.

Indeed, the Office of Special Counsel for Immigration-Related Unfair Practices at the Department of Justice remains especially vigilant against employers who may indulge in discriminatory practices. In an OSC letter to an employer dated October 14, 2011, the OSC provided the following caution regarding employers responding to anonymous tips on an employee’s immigration status:

OSC cautions employers to respond to anonymous tips with restraint because these tips may be based, in whole or in part, on such factors an individual’s presumed citizenship status, national origin, accent, or cultural customs. Such factors are not relevant in determining whether an individual is authorized to work in the United States. In addition, whether an employer should respond to an anonymous tip depends upon the specific facts at hand, including the credibility and substantive nature of the information provided.

An employer is only under a duty to investigate further if it knows or has knowledge that would lead a reasonable person to believe that an individual is not authorized to work in the United States, and a clear example would be if the employer received specific information from the government that certain employees have committed document fraud. See Mester Mfg. Co. v. INS, 879 F.2d 561 (9th Cir. 1989); New El Rey Sausage v. INS, 925 F.2d 1153 (9thCir. 1991). By that token, a mismatch letter from the Social Security Administration that an employee’s name and number may not match should not give rise to a conclusion that the employee is not authorized to work in the United States as the mismatch may be caused for a number of other reasons. The same reasoning should apply to an anonymous tip that lacks credibility.

Probably Trump does not care to know these nuances, but he should if he dismisses workers on tips and suspicions especially if the documents verified on the Form I-9 are bona fide, or his company may be penalized by OSC for unfair immigration related employment practices. This would further damage his party’s credibility with Hispanic and new American voters if not already damaged, as Trump shared the podium with Sheriff Joe Arpaio who has a federal conviction for racial profiling.

Like all the other anti-immigrant personalities and movements who have come before him, Trump too will become irrelevant and will be consigned to the trash bin of history if he continues to indulge in demagogy against Mexican immigrants. Even if Trump tries to justify his anti-immigrant remarks by linking immigrants to crime, these unfortunate incidents are isolated when compared to crimes perpetrated by American citizens. Indeed, immigrants tend to have lower crime rates than the general population.  Trump has been losing business, and his towers if still emblazoned with his name will also embarrass, and will probably soon be viewed in the same way like other symbols that are now despised such as the Confederate flag.


By David A. Isaacson

Earlier this month, President Obama announced that the United States would soon be re-establishing diplomatic relations with Cuba.  The White House website indicates that the President will be “working to re-establish an embassy in Havana in the next coming months.”  U.S. immigration law currently treats natives and citizens of Cuba differently from people from other countries in a variety of respects.  This new development raises the question whether resumption of diplomatic relations with Cuba will have any impact on that different treatment of Cuban nationals.
Perhaps the best-known aspect of U.S. immigration law that provides distinctive treatment to natives and citizens of Cuba is Public Law 89-732 of 1966, generally known as the Cuban Adjustment Act (CAA).  (Its official title was “An Act to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes.”)  Under the CAA, natives or citizens of Cuba who have been admitted or paroled into the United States, and have been physically present for a total of one year (until the Refugee Act of 1980 the requirement was two years) are eligible for adjustment of status to that of a lawful permanent resident.  Eligibility for adjustment under the CAA also extends to the spouse and child of a Cuban applicant, even if not themselves Cuban, so long as they reside with the Cuban native or citizen in the United States or qualify as abused spouses and children of a qualkifying Cuban principal under amendments to the Violence Against Women Act.
Applicants for adjustment of status under the CAA must in general be admissible, although they are not subject to the bars to adjustment of status at INA §245(c).  Also, according to the 1967 decision of the former INS in Matter of Mesa, the public-charge ground of inadmissibility which is currently at INA 212(a)(4)does not apply to adjustment under the CAA.  Adjustment under the CAA is a discretionary benefit, but USCIS has said in its Adjudicator’s Field Manual that its officers should, “in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in [Cuba].”
Unlike applicants for asylum under INA §208 or refugee status under INA §207, applicants under the CAA, which predates both of those provisions, do not need to show a well-founded fear of persecution on a protected ground or otherwise establish that they meet the definition of a refugee under INA §101(a)(42).   One recent proposed amendment to the CAA would have required applicants under the CAA to attest to their status as political refugees and face potential loss of their status if they were to return to Cuba, but current law has no such requirement.
The CAA itself does not depend on the presence or absence of U.S. diplomatic relations with Cuba.  Thus, with respect to potential applicants whom DHS chooses to admit or parole into the United States, adjustment under the CAA will remain available.  However, there is a related benefit granted to natives and citizens of Cuba under U.S. immigration law, which may determine whether they can seek adjustment under the CAA at all, and which will be affected by the resumption of diplomatic relations.
Under section 235(b)(1) of the INA, most applicants for admission to the United States are subject to an expedited removal process whereby they can face quick removal from the United States unless they establish either a credible fear of persecution or that they were previously admitted as lawful permanent residents or granted refugee status or asylum.  (This author has previously discussed how judicial review of an expedited removal order may be available for certain returning nonimmigrants.)  However, INA 235(b)(1)(F)states that these provisions “shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.”  This provision appears to have been enacted for the benefit of natives and citizens of Cuba, the only “country in the Western Hemisphere with whose government the United States [did] not have full diplomatic relations” when the modern expedited-removal process was enacted in 1996 by IIRIRA.  Under section 235(b)(1)(F), natives and citizens of Cuba who arrive at a U.S. airport cannot be subjected to expedited removal.
At least if one reads section 235(b)(1)(F) literally, however, resumption of diplomatic relations with Cuba will remove Cuban natives and citizens from its coverage, leaving them subject to expedited removal at airports.  Perhaps one could argue that the provision refers to a fixed set of countries with which the United States had no diplomatic relations as of the enactment of IIRIRA, but a contrary literal reading is at least possible. Since one who is expeditedly removed after failing to establish a credible fear of persecution generally will not then be paroled or admitted into the United States, greater availability of expedited removal for natives and citizens of Cuba following resumption of diplomatic relations with Cuba would indirectly reduce the availability of adjustment under the CAA.
DHS is not required to place Cuban natives or citizens into expedited removal proceedings simply because they are eligible for such treatment, however.  As the BIA clarified in Matter of E-R-M- & L-R-M-, a case involving natives and citizens of Cuba who had applied for admission at a land port of entry rather than an airport and thus were not covered by 235(b)(1)(F), DHS has prosecutorial discretion to place arriving aliens in removal proceedings under INA §240 even if they would otherwise be amenable to expedited removal.  DHS also has discretion to parole such arriving aliens under INA §212(d)(5) rather than placing them into any sort of removal proceedings.
For this reason, the resumption of diplomatic relations will not have an effect on the availability of CAA relief unless DHS wishes it to.  However, natives and citizens of Cuba who are considering arriving at a U.S. airport in order to seek parole and ultimately adjustment of status under the CAA should keep in mind that, following the resumption of diplomatic relations with Cuba, they will be at greater risk of expedited removal.