President Obama’s Executive Actions — Status of Implementation & Political Infighting — Part 7 — USCIS “Re-call” on 3 Year EAD Cards

By: Robert Gard

 

Two key pieces (expanded “DACA” without age limits and “DAPA”) of President Obama’s Executive Actions Program, announced on November 20, 2014, were scheduled to go into effect on February 18th and May 26th of this year, respectively; but legal and political hurdles to implementation remain. On November 20, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system. The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions. The USCIS website has a DACA page/link, where the public can sign up for emailed instructions, updates and further developments: http://www.uscis.gov/immigrationact ion

Status of Implementation and Political Infighting:

As of the date of my last article, US District Court Judge Hanen (in Brownsville, Texas area) had issued a 123 page decision on February 16th, putting in place a preliminary injunction temporarily blocking implementation of President Obama’s new deferred action initiatives (expanded DACA and DAPA), while pointedly leaving the original 2012 version of DACA untouched and undisturbed. Judge Hanen indicated that his preliminary injunction was for the purpose of providing time for a coalition of 26 states to pursue a lawsuit seeking a permanent injunction against the President’s new deferred action initiatives. The Obama Administration filed an emergency Motion to remove the injunction ordered by Judge Hanen, and, on Tuesday, May 26th, a three judge panel of the U.S. 5th Circuit Court of Appeals, by a vote of two to one in what appeared to be an overtly politically influenced ruling, chose to leave Judge Hanen’s injunction in place, and the 5th Circuit then set a date of July 10, 2015 for a hearing on the full appeal. The full appeal was argued in the 5th Circuit before a panel of three Judges, two of whom had previously ruled against the Obama Administration on the previously argued emergency Motion. By most accounts, the session did not go well for the Obama Administration, though a final ruling has not yet been issued.

Before the May 26th argument before the 5th Circuit Court of Appeals, it became known to Circuit Court Judge Hanen that USCIS had actually gone ahead and implemented a part of the November 20, 2014 Executive Actions by issuing Employment Authorization Documents (EAD Cards) with an extended validity of three years, rather than the two year cards that had been issued under the initial 2013 DACA Program. Judge Hanen determined that the approximately 2,500 three year EAD cards issued after his February 16, 2015 injunction constituted a serious material violation of his injunction, and, on July 7, 2015, Judge Hanen issued an order for USCIS to take immediate steps to “remediate their violative behavior”, setting the date of August 19, 2015 for all defendants (DHS/USCIS) to appear in court to show cause why they should not be held in contempt of Court and immediately punished or sanctioned. Judge Hanen also set a date of July 31, 2105 by which the Obama Administration could file a detailed report to show that it has complied with his previous order. Quoting from Judge Hanen’s July 7th Order, “If the Government remedies this situation and comes into compliance with this Court’s injunction by July 31, 2015, it shall include a summary of that situation in the July 31, 2015 report to the Court. If the Court is satisfied with the Government’s representations, it will cancel the August 19, 2015 hearing. Otherwise, the Court intends to utilize all available powers to compel compliance.”

As a result of the Judge’s July 7, 2015 order threatening contempt citations in the ongoing litigation in Texas v. United States, USCIS advised the public that it is implementing additional, and in some cases extreme, steps to retrieve approximately 2,500 3-year EAD cards and DACA approvals that were erroneously issued after the court’s February 16, 2015 injunction temporarily halting implementation of the expanded DACA Program. These steps included a series of increasingly strident and urgent letters advising 3 year EAD Card recipients that they must immediately return their cards to USCIS to be replaced by 2 year EAD Cards, with threats that their DACA grants and employment authorization would be terminated and withdrawn if they failed to return the cards, and USCIS “may consider your actions as a negative factor in weighing any future requests for deferred action, or any other discretionary requests.” USCIS has even taken the extraordinary step of making home visits (to be concentrated in Chicago, Los Angeles, and possibly Dallas and Houston) to recipients of the 3 year EAD Cards to collect the cards. USCIS has also established a website so that individuals can now verify online whether they need to return their 3-year DACA EAD to USCIS by going to https://my.uscis.gov/daca_ead. They can also call the customer service line at 800-375-5283 and select option 1 for English, then option 8 or visit the nearest USCIS field office. USCIS is determined to be able to report full compliance to Judge Hanen by the July 31st reporting date to avoid the contempt of Court hearing scheduled for August 19th.

As stated previously, another option that few commentators seem to be discussing is simply for the DHS to publish the new proposed rules in the Federal Register, and go through the regular rulemaking process used for most regulatory changes (which probably should have been done in the first place.) While this would delay implementation for a few months, it would completely blunt one of the main arguments of the opposition. Could it be that this is one of those instances where the facile retort that “both sides are playing politics here” would be entirely accurate. Both sides seem to be portraying themselves as the wounded victim, with neither side wanting to resolve the issues at anytime soon for purely politics advantage.

USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition after April 9, 2015 Administrative Appeals Office (AAO) Precedent Decision of Matter of Simeio Solutions, LLC

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.

Generally, the “final guidance” provides that if the date of the employee’s work-site move occurred on or before April 9, 2015, no amended H-1B petition is necessary. If the employee’s work-site move took or takes place between April 10th and August 19, 2015, then an amended H-1B petition must be filed before January 15, 2016. If the employee’s work-site move took or takes place after August 19, 2015, then an amended H-1B petition must be filed soon after the new Labor Condition Application (LCA) is certified. Generally, an H-1B employer has 30 days from the date of the work-site move to file the amended H-1B petition. USCIS applies Simeio in its revised 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.

The revised Final Guidance reconfirmed that an amended H-1B petition is NOT required if the geographical move is within an “area of intended employment.” An “area of intended employment” is generally the same as a Metropolitan Statistical Area. Likewise, an amended H-1B petition is NOT required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration. 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. In other words, if an employer shifts the H- 1B employee to a new work-site location within the same city, this would NOT trigger the requirement to file a new LCA (nor an amended H-1B petition), although the previously obtained LCA would still need to be properly posted at the new work-site location. This could happen if an entire office moved from one location to another within Chicago, or even if the H-1B worker moved from one client site to another within Chicago.

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 “nonworksite” 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.)”

The revised Final Guidance also confirms that if an employer’s amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition. If all of this sounds a bit complicated and confusing, it is, and it’s all the more reason to make sure that your interests (and lawful nonimmigrant H-1B status) are protected by retaining competent legal counsel with respect to your immigration matters.##