Effective July 21, 2015, new guidance (PA-2015-001) in the USCIS Policy Manual clarifies the eligibility requirements for modifications to the Oath of Allegiance.
Reciting the Oath is part of the naturalization process. Candidates for citizenship normally declare that they will “bear arms on behalf of the United States” and “perform noncombatant service in the Armed Forces of the United States” when required by the law.
A candidate may be eligible to exclude these two clauses based on religious training and belief or a conscientious objection. The new guidance clarifies that a candidate:
May be eligible for modifications based on religious training and belief, or conscientious objection arising from a deeply held moral or ethical code.
Is not required to belong to a specific church or religion, follow a particular theology or belief, or to have had religious training in order to qualify.
May submit, but is not required to provide, an attestation from a religious or other type of organization, as well as other evidence to establish eligibility.
Beginning July 13, 2015, USCIS will resume accepting Form I-907, Request for Premium Processing Service for all Form I-129, Petition for a Nonimmigrant Worker, H-1B extension of stay petitions. This is 2 weeks earlier than the previously announced date of July 27, 2015.
The Department of Homeland Security (DHS) issued a notice that Nepal has been designated for Temporary Protected Status (TPS) for a period of 18 months, effective today, June 24, 2015, through December 24, 2016. This designation allows eligible Nepalese nationals (and immigrants having no nationality who last habitually resided in Nepal) who have continuously resided and have been continuously physically present in the United States since June 24, 2015, to be granted TPS. The 180-day registration period ends on December 21, 2015.
The Bureau of Consular Affairs is currently experiencing technical problems with our overseas passport and visa systems. This issue is not specific to any particular country, citizenship document, or visa category. The Consular Consolidated Database (CCD) problems we are experiencing are not the same challenges we overcame last summer. We are working urgently to correct the problems and restore our system to full operational status as soon as possible. We apologize to applicants who are experiencing delays or are unable to obtain a passport overseas, Consular Report of Birth Abroad, or U.S. visa at this time. Domestic passport issuances are not affected at this time. We are able to issue emergency passports to U.S. citizens overseas for urgent travel. We are seeking to assist non-immigrant visa applicants with urgent humanitarian travel. Travelers with an urgent humanitarian need for travel should contact their nearest U.S. embassy or consulate. We are aware of pending overseas adoption cases, including in China. We are prioritizing these cases and seek to issue these visas with few delays. We regret the inconvenience to travelers, and remain committed to facilitating legitimate travel while protecting our borders. We are working urgently to correct the problem and expect our system to be fully operational again soon. We will post updates to Travel.State.Gov as more information becomes available.
Q: Is this the same issue as last year? Was it not fixed?
This is not the same issue as last year.Q: What is going on? Why can’t the Department issue visas, passports, and other travel documents?
We are working as quickly as possible to pinpoint the root cause of our technical issues. We apologize to travelers and recognize that this may cause hardship to individuals waiting for visas and passports overseas.Q: How is this affecting consular operations?
Passport applications accepted overseas on or after May 26, 2015 are affected. If you applied for a U.S. passport during this time frame and have travel plans within the next 10 business days, please consider requesting an emergency passport at the U.S. embassy or consulate at which you originally applied. Information about how to apply for an emergency passport is available on the website of the nearest U.S. embassy or consulate.
Security measures prevent consular officers from printing a passport, report of birth abroad, or visa until the case completes the required national security checks. Service to our customers will be interrupted until the system is brought back online.Q: Can the Department just print travel letters for those who need to travel quickly?
At this time we are able to issue passports to U.S. citizens overseas for emergency travel. Domestic passport operations are not affected at this time. U.S. citizens applying for a passport domestically will receive passports within the four-to-six week standard for routine passports. We are seeking to assist nonimmigrant visa applicants with urgent humanitarian travel. Please contact the embassy or consulate where you applied for additional information.Q: What caused this outage? Was it a malicious action or hack?
There is no evidence the problem is cyber security related. We are working urgently to correct the problem and expect the system to be fully operational again soon.Q: How long before you restore full system functionality?
We do not yet have a timeline. We are working urgently to identify the problem and correct it. We expect the systems to be fully operational again soon.
Getson & Schatz, P.C. Attorney Marco Pignone was quoted in Al Dia News regarding one of our firm’s cases. http://aldianews.com/articles/politics/immigration/honduran-man-facing-deportation-has-two-days-make-his-case/39306
USCIS is accepting applications for employment authorization from certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. USCIS published a revised Form I-765, Application for Employment Authorization, with an edition date of February 13, 2015, which contains the eligibility category (c)(26) for H-4 dependent spouses. While USCIS will continue to accept previous editions of the form, USCIS indicates that H-4 applicants should use the revised form to prevent delays or RFEs. A federal district court has denied a motion for a preliminary injunction to stop DHS from implementing the H-4 final rule.
On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:
- When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
- When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA.
This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. H-1B petitioners should follow the guidance below.
When You Must File an Amended Petition
You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) or an “area of intended employment” (as defined at 20 CFR 655.715) covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
Note: Once you file the amended petition, your H-1B employee can immediately begin to work at the new location. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.
When You Do NOT Need to File an Amended Petition
- A move within an MSA: If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment. For example, an H-1B employee moving to a new job location within the New York City MSA (NYC) would not trigger the need for a new LCA, but you would still need to post the previously obtained LCA at the new work location. This is required regardless of whether an entire office moved from one location to another within NYC or if just one H-1B employee moves from one client site to another within NYC.
- Short term placements: Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA. See 20 CFR 655.735. In these situations, you do not need to file an amended H-1B petition.
- Non-worksite locations: If your H-1B employee is only going to a non-worksite location, you do not need to file an amended H-1B petition. A location is considered to be “non-worksite” if:
- The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
- The H-1B employees spend little time at any one location; or
- The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).” See 20 CFR 655.715.
Filing Amended H-1B Petitions
- If your H-1B employees were changing worksite locations at the time of the Simeio Solutions decision, you have 90 days from the date of this web alert (May 21, 2015) to file amended petitions for H-1B employees who changed their place of employment to an MSA or area of intended employment requiring coverage by a new or different LCA than that submitted with the original H-1B petition. Therefore, if you have not filed an amended petition for an H-1B worker who moved worksite locations before May 21, 2015, you have until August 19, 2015 to file an amended petition.
- If your H-1B workers changed their worksite location before the Simeio Solutions decision, USCIS will not take adverse action against you or your employees if you, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment by May 21, 2015. However, as noted above, you must now file an amended petition for these H-1B employees byAugust 19, 2015.
- If you do not file an amended petition for these employees by August 19, 2015, you will be out of compliance with USCIS regulation and policy and thus subject to adverse action. Similarly, your H-1B employees would not be maintaining their nonimmigrant status and would also be subject to adverse action.
- If your amended H-1B petition is denied, but the original petition is still valid your H-1B employee may return to the worksite covered by the original petition as long as the H-1B employee is able to maintain valid nonimmigrant status at the original worksite.
- If your previously-filed amended H-1B petition is still pending, you may still file another amended petition to allow your H-1B employee to change worksite locations immediately upon your latest filing. However, every H-1B amended petition must separately meet the requirements for H-1B classification and any requests for extension of stay. In the event that the H-1B nonimmigrant beneficiary’s status has expired while successive amended petitions are pending, the denial of any petition or request to amend or extend status will result in the denial of all successive requests to amend or extend status. See Memorandum from Michael Aytes, Acting Director of Domestic Operations (Dec. 27, 2005) for similar instructions about portability petitions.
To the extent possible, you should submit receipt notices of prior petitions. USCIS will determine, on a case-by-case basis, whether a petition was filed before the current I-94 expired.
@GetsonSchatz will be at the #AACR Career Fair on Saturday April 18th at the #AACR Annual Conference at the Philadelphia Convention Center from 9 am to 3 pm. Please visit us for an EB-1A/EB-1B/NIW case evaluation and to learn about our travel awards.
USCIS notice that on 4/13/15, it used a computer-generated random selection process, or lottery, to select petitions to meet the FY2016 cap. USCIS will begin premium processing for H-1B cap cases no later than 5/11/15. USCIS received nearly 233,000 H-1B petitions during the filing period.
USCIS has received enough H-1B cap-subject petitions to reach the cap for FY2016. USCIS will complete initial intake before it conducts the lottery, but due to the high number of petitions, it is not yet able to announce when the lottery will occur. AILA President Leslie Holman responded to this news, stating, “Once again, our country’s outdated and inefficient immigration laws are blocking economic gains and business growth.”
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