The E-3 is a nonimmigrant visa that allows Australian citizens to temporarily come to the US to work for a US employer in a professional capacity. To qualify for this visa, Australian foreign nationals must have a legitimate offer of employment in the US with a salary that complies with Department of Labor requirements, fill a position that qualifies as a specialty occupation (i.e., a professional job that requires a bachelor’s degree or higher in a specific field of study), and hold at least a bachelor’s degree (or the equivalent work experience) in a field related to the position.
Read moreOPINION: USCIS Rescission of Guidance Memo on Computer-Related Positions: H-1Bs Are Still Available for Computer Programmers
As most immigration attorneys were breathing a sigh of relief from having prepared all their H-1B cap cases, and from having rushed to file the H-1B renewals requiring premium processing; and as we were just popping open that bottle of champagne, US Citizenship & Immigration Services (USCIS) issued a surprise memo on March 31, 2017. Panic ensued. Trump was blamed. USCIS jumped in to explain that the March 31 memo did not constitute a change in policy but rather a clarification to the Nebraska Service Center (where many H-1Bs are now being processed) of the current policy on H-1Bs for computer programmers. So what does it all mean? Can a computer programmer still get an H-1B? What about other technology jobs? We will try to answer some of these questions below.
Read more5 Immigration-Related Tips for When a Company or Foreign National Moves or Changes Work Locations
In today’s increasingly mobile world, companies and workers are in constant motion (including, very recently, our firm which moved from the Meatpacking District to Chelsea at the beginning of this month). It is very common for companies and foreign nationals to move across international borders, either temporarily or permanently, and also for companies and foreign nationals to move within countries from city to city. Such moves impact pending immigration cases as well as existing visas. Here are our top five immigration-related tips for foreign nationals and companies to consider when making any permanent move in location.
Read moreH-1B Change of Work Locations: Practical Guidance after AAO’s Matter of Simeio
Late last month, following the Administrative Appeals Office (AAO) decision of Matter of Simeio Solutions, LLC, US Citizenship & Immigration Services (USCIS) released draft guidance on the practical application of the decision. USCIS will accept public comments on the draft until June 26, 2015. Even in draft form, we were pleased to see that their guidance really did answer a lot of the lingering questions we had after the Simeio decision (thank you, USCIS!), and since this decision and guidance could potentially affect quite a few H-1B petitioners and applicants who have multiple work locations or have moved locations recently, we thought it would be helpful to review the major points of the guidance as well as a very important deadline (it’s August 19, 2015).
Read moreJD Supra: "Changed locations require New H-1B Petition, Not Just LCA"
After a decision earlier this month by the US Attorney General to designate as "precedent" a decision by US Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO), employers must now file amended H-1B petitions if the employee moves work locations outside the geographic area specified on the original certified labor condition application (LCA) because the filing of a new LCA is a material change. The LCA is designed to protect American workers by verifying to the Department of Labor (DOL) that the employer is paying the H-1B employee at the industry wage level for the geographic location of employment thereby eliminating economic advantages to hiring foreign workers. Previous to this decision, most practitioners simply filed a new LCA and updated the company’s public access file when the employee changed geographic locations but did not file an amended H-1B petition. Although disputed, this practice at one time was confirmed in a letter by stakeholder Efren Hernandez who was then Director of the USCIS Business and Trade Branch. A new H-1B was typically filed only when there was a “material change” in the beneficiary’s employment but there was no consensus as to what exactly constituted a “material change.”
Designating AAO decisions as precedent is a "quicker way of settling an interpretational issue than issuing a regulation" and this decision will immediately change how petitioners file certain H-1B cases and, of course, how USCIS adjudicates them.
Because by statute the Attorney General (AG) is the ultimate arbiter within the Executive Branch about the meaning of immigration laws, the AG's designation as precedent makes the decision binding on all immigration officers in the Department of Homeland Security as well as all Immigration Judges in the Department of Justice. An agency decision designated as precedent also tends to receive the highest level of deference from federal courts, the same as in a regulation following notice and comment rulemaking.
This AAO decision (Matter of Simeio Solutions, LLC) concerned the revocation of an H-1B petition for an foreign national IT worker, whose case also highlights some of the potential H-1B "abuses" that USCIS has been trying to remedy. In this instance, the petitioner filed an H-1B petition listing a sole work location in Long Beach, California. After the petition was approved, when the beneficiary attempted to obtain a visa stamp at the US Embassy in New Delhi, India, the consular officer conducting the visa interview raised concerns about the approval of the H-1B petition, requested additional documentation, and referred the case back to USCIS. In addition, USCIS also conducted a site visit to the work location and found that the petitioner had vacated the site and was using an employee's home as the company address. After USCIS issued a notice of intent to revoke the approval of the petition, the petitioner submitted a new LCA listing two new work location addresses: one in Camarillo, California, and one in Hoboken, New Jersey. USCIS concluded that these work location changes "constituted a material change to the terms and conditions of employment as specified in the original petition" since the prevailing wage of these locations was different than what was previously listed on the original LCA and USCIS required that the petitioner “file an amended Form I-129 corresponding to a new LCA that reflects these changes." Since the petitioner had not filed the required amended H-1B, USCIS revoked the original petition approval, which is never something attorneys want to tell their clients.
The decision, in short, clarifies that a change of work location outside the geographic area is a "material change" to the H-1B petition since such a change affects eligibility for H-1B status (as the LCA specifically attests that employees are compensated at the prevailing wage for a certain geographic location), and thus an amended H-1B petition must be filed. The decision concludes: "Full compliance with the LCA and H−1B petition process, including adhering to the proper sequence of submissions to DOL and USCIS, is critical to the United States worker protection scheme...and necessary for H−1B visa petition approval."
Do’s and Don’ts of the E-3
Not too long ago, Lizzie B. created a wonderful chart highlighting some alternatives to the H-1B. In that post she covered the basics of the E-3: that it is for Australian citizens who are coming to the US to work in a professional job, that it is issued in two-year increments and that the Australian national must be getting paid a salary that is in line with what the Department of Labor (DOL) deems appropriate for the position. The E-3 is one of the easiest US visas to obtain. It is a fast process since the application can be made straight at the US Embassy/Consulate, and does not require piles of documents. Some employers choose to do the application themselves, and while most of the time everything goes well, sometimes things can go awry. I thought it might be helpful to create a list of do's and don’ts for the E-3 application to help avoid denials if employers are filing these themselves:
DO...
✔ BE AN AUSTRALIAN CITIZEN
The beneficiary of the E-3 application must be an Australian citizen with an Australian passport. People who live in Australia without having acquired citizenship are not eligible. The spouse and children of the principal beneficiary need not necessarily be Australian citizens in order to get the E-3 dependent visa (E-3D).