Chicago Immigration Lawyer Blog

Published on: April 14, 2015

BIA says alien cannot keep priority date from withdrawn or revoked I-140 petition

In the non precedential decision In re Grace Estrellado, the Board of Immigration Appeals states that alien may not utilize the priority date form her original I-140 petition because it was withdrawn by her prior employer and the USCIS revoked it.

Background

The case involved an alien who had an approved I-140 petition for which the priority date was not current. She had a prior I-140 petition with January 10, 2006, priority date, but the prior employer had withdrawn the petition, and the USCIS had revoked its approval, following the withdrawal. Nevertheless, the foreign national argued to the immigration judge that she can use the old January 10, 2006 priority date and apply it to the new I-140, so that she can adjust status right away as the old priority date was current. The immigration judge determined that because the first I-140 had been withdrawn and the approval revoked, the alien could not use the old priority date for the new petition. He also denied the alien a continuance because the new priority date was far into the future.

Analysis

The Board of Immigration Appeals, applying de novo standard of review to the legal issues, agreed with the immigration judge that the alien cannot use the old priority date because the first I-140 had been withdrawn. The foreign national argued that the regulations provide that she could keep the old priority date. She cited 8 C.F.R. 204.5(e) in support of her proposition.

This regulation reads:
(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.

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Published on: April 13, 2015

AAO says employer must file amended H-1B if new LCA is needed

By Zneimer & Zneimer, P.C.

In a recent decision the Administrative Appeals Office affirmed the revocation of an H-1B petition where the geographical location of employment had changed triggering a requirement for a new Labor Condition Application. In Matter of Simeo Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), the AAO determined that a change in the beneficiary’s location of employment is a material change to the terms and conditions of employment as originally listed in the H-1B petition. Because such change is material, the petitioning employer was required to file an amended H-1B petition corresponding to a new LCA that reflects the change. The AAO noted that Section 212(n) of the Immigration and Nationality Act ties the prevailing wage to the “area of employment.” Therefore, the AAO reasoned, “a change in the beneficiary’s place of employment to a geographical area not covered in the original LCA would be material” for both the LCA and the H-1B petition, since such change may affect eligibility for H-1B petition.

Background

In this case, the employer filed H-1B petition changing the beneficiary’s status from F-1 student to H-1B employee. In the Labor Condition Application and the H-1B petition, the employer identified an

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Published on: April 1, 2015

H-1B Filing Season Started

By Zneimer & Zneimer, P.C.

The new H-1B fiscal year begins on October 1, 2015, when U.S. employers can add to their workforce up to 65,000 foreign nationals, plus additional 20,000 foreign nationals with a U.S. master’s or higher degree. In addition, any unused H-1B1 numbers from Chile and Singapore will be added to the regular H-1B visa pool. As the USCIS regulations permit the filing of H-1B petition no more than 180 days before the start date, and since the earliest state date for new H-1B employees would be October 1, 2015, the filing season begins today. Most petitioners had everything ready for mailing on March 31, 2015 (yesterday) for USCIS receipt on April 1, 2015.

Based on prior experience, USCIS expects to receive more petitions than the Congressionally mandated numerical limitations. The agency stated that it would monitor the number of petitions and will announce to the public when the cap has been met.

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Published on: March 25, 2015

Same Sex Marriages and the Immigration Challenge – Two Years Later

By Zneimer & Zneimer, P.C.

After the United States Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675, 2695-96, 186 L. Ed. 2d 808 (2013), holding that the Defense of Marriage Act’s definition of marriage was unconstitutional and a deprivation of liberty interest protected by the Fifth Amendment of the U.S. Constitution, the USCIS began processing immigrant petitions for same sex spouses. On July 1, 2015, the then Secretary of Homeland Security Janet Napolitano stated “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

On June 26, 2015, it will be two years since the landmark decision of the Supreme Court. Since that time, our law firm has processed numerous same sex petitions, all of which USCIS has approved in a swift and efficient manner. We are happy to report that petitions filed on behalf of same-sex spouse are being processed in the same manner as those filed on behalf of heterosexual spouses. Even though the processing is the same, we would like to share some unique challenges faced by same sex couples when preparing the evidence in support of a good faith marriage.

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