Ninth Circuit Overturns H-1B Visa Petition Denial

The Ninth Circuit has held that USCIS’ refusal to issue an H-1B visa to a computer programmer is arbitrary and capricious when the Occupational Outlook Handbook states that although a bachelor’s degree is typically needed for a programmer position, sometimes an employer will hire an individual with an associate’s degree. “Although the OOH, a career education resource published by a different agency, did not use the precise language of the H-1B regulation, it made clear that a bachelor’s degree is not only common but typically needed. There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. ‘Typically’ and ‘normally’ are synonyms.'“

The full text of Innova Solutions v. Baran can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf

AAO Issues Precedent Decision on Material Changes in an H-1B Worker's Employment

Today is a milestone - my first blog post about case law affecting nonimmigrant employment-based visas - hold your breath, folks and let's see if I can adequately explain the Administrative Appeals Office's (AAO) decision in Matter of Simeio Solutions.

The beneficiary was approved for H-1B status for work performed in Long Beach, California.  After a few months, he traveled to India an sought an H-1B visa at the consulate.  Upon further investigation, the consulate determined that the beneficiary was providing services outside the scope of the original petition.  It notified United States Citizenship and Immigration Services (USCIS), who conducted a site visit to the beneficiary's workplace in Long Beach.  There, USCIS learned that the beneficiary was actually working from Camarillo, California and Hoboken, New Jersey.  Both of these locations were outside the geographic area covered the original labor certification filed in support of the H-1B petition.  USCIS determined that the changes in the beneficiary's places of employment constituted a material change to the terms and conditions of employment as outlined in the original petition.  

On appeal, the AAO agreed with USCIS's position, noting that the prevailing wage the employer was required to pay differed in the three geographic areas, and that the beneficiary's current salary did not meet the prevailing wage requirements in Camarillo or Hoboken.  As such, this change in locale required the filing of an amended petition along with a new labor certification.

You can find the full text of Matter of Simeio Solutions here: http://www.justice.gov/eoir/vll/intdec/vol26/3832.pdf

USCIS extends employment authorization H-4 spouses of H-1B nonimmigrants

USCIS announced today that beginning May 26, 2015, it will issue employment authorization documents to H-4 dependent spouses of H-1B nonimmigrants who are seeking lawful permanent residence.  

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who: 

• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or 
• Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years

Read the full announcement here on USCIS's website: http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence