JULY 2015
Khaas Baat : A Publication for Indian Americans in Florida


Federal Court Challenge to DAPA and Expansion of DACA

Dilip Patel


On May 26, the U.S. Court of Appeals for the Fifth Circuit denied the federal government’s request for an emergency stay of the preliminary injunction that temporarily halted the implementation of some of President Obama’s deferred action initiatives. These initiatives, announced last November, include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA). These initiatives could shield as many as 5 million immigrants from deportation. As a result of the court’s decision, the preliminary injunction remains in place and, in turn, the DAPA and expanded DACA programs remain on hold. The Fifth Circuit now will consider the appeal of the lower court’s ruling, but not on an emergency basis and will hear arguments in early July.

Two judges on the three-judge panel voted to deny the emergency stay. Judge Stephen A. Higginson, the judge who was in favor of granting the emergency stay, stressed the political nature of this case in his dissenting opinion. He stated that it is inappropriate for the courts to intervene in such a political dispute. Considering that over 100 legal scholars agree that President Obama’s executive actions on immigration are “within the legal authority of the executive branch,” there is no doubt that this battle will continue in the coming months. Unfortunately, until then, millions of immigrants will have to continue to live in uncertainty.

Implementation of Business and Employment-Based Immigration Relief

Meanwhile, the Administration has announced its plans to begin implementing a number of business-related immigration fixes — fixes also contained in the President’s executive action — through the formal administrative rulemaking process. The following were included in recent relevant agency regulatory agendas:

Immigration Avenues Promoting Inventions, Research, and Entrepreneurship

In August, the Department of Homeland Security plans to issue a proposed rule that would allow “certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research” to enter the U.S. through its parole authority. Normally used for urgent humanitarian purposes or significant public benefit, parole allows for the admission of certain immigrants through other-than-normal channels. According to DHS, the proposed rule would allow for temporary parole admission, on a case-by-case basis, based on “investment, job-creation, and other factors.” There was no mention in the current regulatory agenda, however, of the use of the national interest waiver employment-based visa category for some of these immigrants — an idea that was suggested in the executive action.

Expansion of Foreign Student OPT

Also in August, DHS plans to release a proposed rule that would expand optional practical training (OPT) for foreign student graduates with STEP (science, technology, engineering, and mathematics) degrees. What this expansion would mean exactly was not detailed in the announcement, but previously the agency called for an expansion of the degree programs eligible for OPT as well as the length of time foreign graduates can work in the U.S. in OPT status.

Job Mobility Through General Work Authorization for I-140 Beneficiaries

In October, DHS plans to issue a proposed rule that would allow certain I-140 beneficiaries to obtain work authorization while awaiting their green cards and remove restrictions on the ability to change jobs or progress in careers, while facing lengthy adjustment delays.

PERM Labor Certification

In December, the Department of Labor plans to modernize and overhaul the PERM labor certification program, which has not been modified for 10 years. The program has been criticized for not reflecting changes in the U.S. workforce and common industry recruitment practices. The PERM labor certification process is the most common way employees obtain green cards by having their employer certify that no U.S. workers are willing, able, or available to perform the job. Details on exactly what DOL is thinking in terms of how any new program would operate were not released.

Employers Must File Amended H-1B Petition When Employee’s Worksite Changes, Effective Immediately

On April 9, the USCIS appellate level administrative office, the Administrative Appeal Office (AAO), issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers are required to file an amended H-1B petition if moving an employee to a worksite location that requires the employer to certify a new Labor Condition Application (LCA). Specifically, an employer must file an amended H-1B petition if the H-1B worker’s place of employment has or will change to a worksite outside of the metropolitan statistical area (MSA) or area of intended employment covered by the existing approved H-1B petition — regardless of whether a new LCA is already certified and posted at the new location. Moreover, employers are required to file an amended H-1B petition by August 19, 2015, for all employees who changed worksite locations before the case was decided. After the employer has filed the amended petition, the H-1B employee can immediately begin to work at the new location.

USCIS guidelines state that if the amended H-1B petition is denied, but the original petition is still valid, then the employee may return to the worksite covered by the original petition. The employer may also file another amended petition if a previously filed H-1B petition for the same worker is still pending. In such a case, the H-1B employee may begin work at the new location immediately upon the latest filing.

It should be noted that on June 9, USCIS Director Leon Rodriguez, speaking at the Council for Global Immigration, stated that the agency is considering applying the Matter of Simeio Solutions, LLC decision prospectively to provide relief to employers struggling to file all amended petitions by the August 19, 2015, deadline.

Employers, however, do not need to file an amended H-1B petition or LCA for employees whose new worksite is within the same MSA or area of intended employment. Employers are also not required to file an amended petition if the H-1B employee is moving to a non-worksite location — such as a location for employee developmental activity or business travel on a casual, short-term basis. Under some circumstances, an H-1B worker may be moved to a new worksite for up to 30 or 60 days temporarily, without obtaining a new LCA. In these cases, the employer does not need to file an amended H-1B petition.

Employers who have moved or are contemplating to move an employee to another worksite since the filing of the original H-1B are urged to contact their immigration lawyer to determine if an amended petition is required.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com

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