June 2015

The Law Firm of Shihab & Associates June 2015

Our purpose here is to bring you the latest and most relevant immigration news. Immigration law is in constant flux, and we want to help you stay on the cutting edge of the field.

Gus M. Shihab

Gus M. Shihab, Esq.
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In a big win for H-1B employers, an Administrative Law Judge has clarified for the better a new legal standard for their avoidance of wage liability.

The Department of Labor had sided with a former H-1B employee who made herself completely unavailable for work and fled. The Department argued that even though she was completely unresponsive, because she was not correctly terminated, she was still due her full prevailing wage rate. This argument cited a recent ruling where it was found that for an H-1B employer to escape having to pay an H-1B due to his or her nonproductive status, the employer must prove it had work assigned to the visa holder that he or she did not complete. The Department said that the employer in the present case did not meet that standard, and therefore had to pay.

However, the judge didn't buy this argument. In a two-part series of articles, we first introduce the new standard--then explain the details of the case and ruling
A recent case has urged USCIS to issue new guidance covering situations where it is required to file an amended H-1B petition. The guidance was released after a company, Simeio Solutions, changed the circumstances of H-1B employees' work conditions beyond the point that was considered acceptable for Labor Condition Application (LCA) requirements. These changes resulted in LCA violations, which in turn led to H-1B revocation.

Following its monthly release, we break down and analyze the Visa Bulletin. This document is how the State Department announces who is eligible to petition for permanent residence. We also provide other relevant case processing time information.


India's EB-2 date was advancing well, but will fail to move in July, being stuck in October of 2008. Visa Chief Oppenheim warned that this might happen due to increased worldwide demand for EB-2. Significant forward movement is not likely until October. India's EB-3 date (of February 1st 2004) remains at one-week-per-month. This is expected to hold true for the next four to five months. 



Chinese EB-2 continues to advance by hitting October 2013, but its EB-3 has frozen at September 2011. The EB-2 date is expected to make modest gains, but EB-3 could remain frozen. Chinese EB-5 hits September 2013, and may advance again next month. 


All Other Areas
The EB-3 date for the rest of the world had been advancing very strongly--and is now just a few months shy of the present date, at April 1st. However, in doing this, it leaves behind one nationality: Filipino. EB-3 for Filipinos is unavailable due to maxed out demand--and is expected to stay that way until October.

Read more here...  


Above is an analysis of employment based immigration categories. For our analysis of family categories, click here.