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EIG Dispatch – April 17, 2015

April 17, 2015

 

Highlights

  • Change in Worksite Location Requires H-1B Amendment
  • Indian OCI Card Replaces PIO Card Scheme
  • H-1B Cap Premium Processing to Begin April 27, 2015

Change in Worksite Location Requires H-1B Amendment

On April 9th, 2015, the USCIS Administrative Appeals Office (“AAO”) entered an interim decision in the Matter of Simeio Solutions, LLC upholding the revocation of the H-1B petition filed by Simeio Solutions, LLC (“Simeio”).

The initial H-1B petition was supported by a certified Labor Certification Application (“LCA”) which identified the employee’s worksite location as Long Beach, CA, specifying “[the employee] is and will continue to work from [Simeio’s] Long Beach office.” Based on this application and supporting documentation, USCIS approved the H-1B petition. After two months of working for Simeio, the employee traveled to New Delhi to apply for an H-1B visa at the U.S. Embassy based on the approved petition. During the interview process, the Embassy found that some of the information provided by the employee was not included in the initial petition and returned the petition to USCIS for review. USCIS then conducted a site visit at Simeio’s Long Beach offices, finding that Simeio had vacated the property. USCIS contacted Simeio, and the company stated the employee was now assigned to the Los Angeles office and worked from home or at the client sites.

In light of the change in the employee’s work location, USCIS issued a Notice of Intent to Revoke the previously approved H-1B petition. In response, Simeio submitted a new LCA, identifying two new worksites as the employee’s work location: Camarillo, CA and Hoboken, NJ. USCIS concluded that these new worksites were outside the Metropolitan Statistical Area (MSA) and the change in work location was a material change in the terms and conditions of employment indicated in the initial H-1B petition. The Director revoked the H-1B petition stating that pursuant to 8 C.F.R. § 214.2(h)(2)(i)(E), Simeio was required to file an amended H-1B petition corresponding to a new LCA that reflected these changes.

On appeal the AAO determined that the failure of Simeio to file the amended H-1B petition with a new LCA, and its attempt to submit a preexisting LCA that had never been certified to USCIS with respect to a specific worker, would hinder verification of wages and working conditions. The AAO therefore upheld the revocation of the H-1B petition.

Indian OCI Card Replaces PIO Card Scheme

As of January 9, 2015, the Person of Indian Origin (PIO) category has been withdrawn. The PIO card has merged with the Overseas Citizen of India (OCI) card. Accordingly, the Consulate General of India will no longer issue PIO cards, and all PIO card holders must apply for the OCI card in order to travel to India. Current PIO card holders may have to file the OCI card application at the Indian Mission or Cox and Kings Global Services (CKGS) application center where the initial PIO card application was submitted. There is no Consular fee for the OCI card, but applicants will be required to pay the CKGS service fee, the Indian Community Welfare Fund Fee (ICWF), and any fees associated with optional services.

CKGS will not accept any new PIO category applications. Starting June 18, 2015, it will be mandatory for PIO card holders from the U.S. to submit an application for an OCI card. As of April 8, 2015, the PIO card is no longer valid for German and UK nationals. The OCI application is still voluntary for foreign nationals of Indian origin residing in India. The Ministry of Home Affairs has not yet released an official notification the transfer to the OCI card mandatory.

EIG will continue to monitor the PIO card scheme and official notices from the Ministry of Home Affairs for affected nationals of Indian origin.

H-1B Cap Premium Processing to Begin April 27, 2015

EIG reported this week that the FY 2016 H-1B cap had been met and that USCIS started premium processing petitions. USCIS recently announced that it received approximately 233,000 petitions during the FY 2016 H-1B filing period.

On April 27, 2015, USCIS will begin premium processing cap-subject H-1B petitions that requested premium processing, including advanced degree exemption petitions. USCIS routinely provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time beginning the date that USCIS receives the request. For cap-subject H-1B petitions, the 15-day premium processing period begins on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

EIG will continue to monitor developments and provide updates as they become available. We will also notify applicants if their cap petition was selected or returned.