Tuesday, June 30, 2015

AILA ISSUES COMMENTS ON SIMEIO SOLUTIONS

AILA submitted a 15 page comment to the USCIS in response to the USCIS’ request for comments about the Simeio Solutions decision.  MU Law published our submitted comments last week.

The Simeio Solutions decision now requires all H-1B employers to file an amended H-1B petition each and every time that an H-1B employee moves to a new location requiring an LCA.  AILA called into question the AAO’s throw-away line that the Simeio Solutions decision “may be construed as contrary” to prior USCIS interpretation on the issue.  AILA cited many instances of USCIS historical guidance over 20+ years, finding just one time that a USCIS official had implied that an amended H-1B was required.

Of equal importance, AILA points out that the USCIS ought not to issue quasi- legislative changes in policy and rules via AAO opinion.  This approach circumvents the Administrate Procedures Act.  It does not give the public a chance to comment on sweeping measures that impact all users of the program.  Finally, AILA points out this new rule raises substantial unresolved questions, which is the very reason for offering the public a chance to comment via the proper rule-making process.

Friday, June 26, 2015

MU LAW OFFERS COMMENTS TO USCIS ON SIMEIO SOLUTIONS DECISION

The USCIS' recent Simeio Solutions decision has caused much angst in the legal community.  Many commentators have questions both the USCIS policy goals and the legality of this decision.   

Perhaps in response to this feedback, the USCIS offered the public a chance to comment on the decision.  MU Law has offered its comments.  Our comments centered upon the AAO's misunderstanding of the materiality standard, which is the center-piece of the AAO decision.

You can read our comments at this link: 

MU Law Comment on Simeio Solutions decision

Friday, June 19, 2015

TALE OF A JOURNEY DOCUMENTARY

The European Union recently funded a documentary, Tale of a Journey, which tells the stories of Philippine nurses as they migrate to Europe.  Challenges such as missing families, learning new languages, and learning new cultures are explored.

The documentary gives a 360 degree view, as it also tells the stories of nurses who have returned to Philippines after spending sometime in both Europe and America.   It also includes interveiws with government officials and recruiters.  It is worth a watch for anyone intersted in this topic.


Monday, June 15, 2015

DOL UPDATING PERM

The US Department of Labor (DOL) announced on June 2, 2015 that it will begin the process of updating the PERM regulations.  The PERM regulations govern the labor certification process, the first phase of most green card cases. 

The PERM process requires the employer to test the US labor market in an effort to protect the US labor force.  PERM is required for Occupational Therapists, Medical Technologists, Physicians, Speech Language Pathologists, and many other occupations.  PERM is not required for Registered Nurses or Physical Therapists, as the DOL has determined that there is a national shortage of RNs and PTs in the US and therefore the labor market does not need to be tested.

The DOL has not comprehensively examined or modified the PERM process since 2004. Much has changed in the way employers recruit workers since 2004.  The DOL has received ongoing feedback that the existing PERM requirements frequently do not align with worker or industry needs and practices. For instance, the PERM process requires the employer to advertise in the print newspaper; most workers now use online job search engines to find open positions.


The DOL is engaging in new rulemaking that will consider options to modernize the PERM program to be more responsive to changes in the national workforce, to further align the program design with the objectives of the US immigration system, and to enhance the integrity of the labor certification process.

Wednesday, June 10, 2015

JULY 2015 VISA BULLETIN

The Department of State has just released the July 2015 Visa BulletinThis is the tenth Visa Bulletin of the 2015 Fiscal Year.  

The retrogression of the Philippines EB-3 continues.  To insure that no Philippine EB-3 visas are issued, the Department of State has made the Philippine EB-3 number Unavailable.  This means that no Philippine EB-3 visas can be issued this fiscal year.  The next fiscal year starts on October 1, 2015. 

This cannot be good news, although MU still believes that the dates will progress with the start of FY 2016.  Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3.  

India EB-2 remained at October 1, 2008. India EB-3 only moved up one week to February 1, 2004.  All Other EB-3 moved ahead two months to April 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved another five months to October 1, 2013 and EB-3 remained at September 1, 2011. 


Employment- Based
All Other
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01OCT131OCT08CC
3rd15APR1501SEP1101FEB0401APR15--U--

Wednesday, June 3, 2015

WHAT OTHER REASONS REQUIRE AN H-1B AMENDMENT?

Much has been discussed about the recent case Matter of Simeio Solutions where the Administrative Appeals Office (AAO) indicated an H-1B amendment is required when an employee changes worksites from one metropolitan area to another.  There are, however, other situations which require the filing of an H-1B amendment.

USCIS regulations indicate that an employer must file an amended petition to reflect any “material changes” in the terms and conditions of employment or training.  While not filing an amended petition can subject both the employer and employee to penalties and liabilities, neither the USCIS or the DOL have defined "material change."

Changes in employment which may require an amended H-1B petition include:
  • Change from full-time to part-time employment or vice versa
  • Reduction in wages, particularly when it affects the prevailing wage
  • Change of more than 50% in job duties, for instance, Occupational Therapist to Director of Rehabilitation
Insignificant alterations in job duties and normal incremental changes in the upward direction do not require an H-1B amendment.  An H-1B amendment is not required for:
  • Promotion when job duties are mostly the same, for instance, Physical Therapist to Senior Physical Therapist
  • Regular merit-based or cost of living pay increases
  • Moving to a new office in the same metropolitan area
  • Short-term placement at a new work location for less than 30 days per year
  • Non-worksite locations, for instance when an H-1B worker attends an professional conference
  • Change in the employer’s name when none of the terms and conditions of employment change
When an H-1B employee’s employment changes, please contact our office.  Together, MU Law and the employer should decide if the change is material and if an H-1B amendment is required.

Monday, June 1, 2015

USCIS SUED OVER INTERIM EADs

By law the USCIS must either adjudicate EAD applications within 90 days or issue interim employment authorization.  On Friday May 26, 2015, a nationwide class action lawsuit was filed against the USCIS for unlawfully delaying the adjudication of applications for Employment Authorization Documents (EADs). The lawsuit alleges that USCIS’s failed to timely adjudicate applications for EADs and to issue interim employment authorization, in violation of USCIS law.
Various classes of individuals may qualify for an EAD, including: individuals with a pending I-485 (green card) application, students on OPT, and L-2, J-2, and H-4 spouses.  While the USCIS has not indicated as such, the volume of EAD applications being received may be causing delays.  Due to the recent retrogression of the Philippines EB3 category and the new H4 EAD rule, the USCIS has certainly been receiving a large number of EAD applications.

It is important to note that unlike an H-1B extension, which if filed before the H expiration extends the work authorization while the extension case is pending, an application for an EAD extension must be approved before the current EAD expires to avoid a gap in work authorization.  Individuals applying to extend their EADs should apply a minimum of 90 days before the expiration of the EAD card.  Individuals must have a valid EAD in hand to be authorized to work in the US.      

Wednesday, May 27, 2015

ALTERNATIVE VISA OPTIONS TO THE H-1B PROGRAM, PART ONE: F-1

U.S. Citizenship and Immigration Services (USCIS) recently announced it received approximately 233,000 H-1B petitions for the 2016 H-1B CAP filing. This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption. Not surprisingly, this is the largest number of H-1B cap-subject petitions ever received. From a numbers standpoint, we can expect about 36% of the H-1Bs will be accepted and 64% will be returned.

Since more than half of the petitions are returned, U.S. employers must seek alternative visa options to the H-1B program. In this three–part series blog post, we will discuss in detail the available alternatives. Each of these visas has specific legal requirements that the employer and employee must meet to qualify. The options discussed should be considered on a case by case basis, to determine the best fit for the employer and employee.

In the first blog of this three-part series, we discuss the options available to F-1 student visa holders including continued employment under STEM OPT or returning to pursue a higher degree. 

Optional Practical Training (OPT) including STEM OPT

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under the current rules, an F-1 student can be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies. Certain science, technology, engineering and mathematics (STEM) degree holders may be eligible for an additional one time 17 month extension of OPT time. To be eligible for the STEM OPT, the attained degree must be one of the STEM Designated Degree Programs (see STEM Designated Degree Programs) to determine if the degree is eligible and the employer must be registered with the government's "E-Verify" Program.
      
Higher Degree Level

An F-1 student can enroll in a new, higher degree-seeking program at a SEVIS certified university. Note that students may be authorized up to a total of 12 months of full-time practical training at each educational level (e.g., undergraduate, graduate and post-graduate). The student can also be authorized for Curricular Practical Training (CPT) at each new degree level. The CPT option should be exercised with caution and discussed by the student with the university’s designated school official. In a more recent trend, MU noticed the USCIS narrowly focus on F-1 students and whether the student maintained status during period(s) of authorized employment such as CPT.


In the second blog of this three-part series, we will discuss the H-1B CAP exemption options including quota requirements, who qualifies and how some states have designed innovate ideas to take advantage of this option. 

Friday, May 22, 2015

H-1B AMENDMENT NEEDED FOR ALL GEOGRAPHICAL CHANGES, EVEN IF BEFORE APRIL 9, 2015

The USCIS has just released Guidance on its webpage further clarifying the Simeio Solutions case from April 2015. 

The most impactful part of the Guidance is that the USCIS is now requiring all H-1B employers to file an H-1B amendment for employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision. 

Simeio Solutions holds that a new H-1B petition is required whenever an H-1B worker changes his geographical location, if that geographical change requires a new Labor Condition Application (LCA).  Typically geographical changes outside of a metropolitan statistical area require a new LCA. 

The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision.  This new interpretation reaches back in time, requiring all prior geographical moves to file amended H-1Bs.

Accordingly all MU Law clients are encouraged to fully review their H-1B roster and confirm that the H-1B employee’s current worksite matches the worksite listed on the employee’s I-129 petition.  If the H-1B employee’s current worksite does not match the worksite listed on the employee’s I-129 petition, then we should prepare and file an amended H-1B petition. 

Thankfully, the Guidance is giving all H-1B employers a 90 day grace period, until August 19, 2015, to comply with this latest Guidance interpretation.

The new USCIS Guidance also confirms existing safe harbors within the law.  An amended H-1B does not have to be filed when:

-The geographical move is within the same metropolitan statistical area.

-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.

-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.  

Wednesday, May 20, 2015

USCIS TO SUSPEND H-1 EXT PREMIUM

USCIS will temporarily suspend premium processing for all H-1B Extension of Stay petitions from May 26, 2015 until July 27, 2015.  USCIS will continue to premium process all other H-1B petitions during this period, such as petitions subject to the H-1B cap.  USCIS will refund the premium processing fee if:

-A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
-USCIS did not act on the case within the 15-calendar-day period.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Tuesday, May 19, 2015

DOS EXPECTS PHILS EB-3 RETROGRESSED UNTIL OCT 2015

In AILA’s latest “Check-in with Charlie” Department of State’s Charlie Oppenheim explains that the Philippine retrogression is being caused by “heavy demand”.  He says that other categories such as Worldwide EB-2 and Other Worker EB-3 are also in great demand.

Because of this demand he does not expect that the Philippine EB-3 date will move forward at any time in Fiscal Year 2015 (Oct 1, 2014 – Sept 30, 2015).  The date may even cut-off this summer.  Charlie's phrase is "further corrective action".

There remains optimism that there will be a progression of Philippine EB-3 dates with FY 2016, which begins October 1, 2015.  From 2008-2014, barely any Philippine EB-3 visa applications were filed, mainly because of the recessed US economy.  It therefore stands to reason that any jump in dates that reaches 2008, will progress forward to 2014. 

Accordingly, MU Law expects that the Philippine EB-3 number will return to 2014 before the end of this year.  However if Philippine EB-3 demand continues the Philippine EB-3 number may eventually retrogress negatively, although it is too early to specifically estimate Visa Bulletin dates in calendar year 2016.

One note of interest from a recent DC Circuit case, Xie v. Kerry.  The DC Circuit told the DOS to clarify how it applies the Visa Bulletin.  The outcome of this remanded case could conceivably alter the way that the Visa Bulletin is compiled.

Thursday, May 14, 2015

HOW TO APPLY FOR CAP GAP

Students with work authorization under OPT (optional practical training) whose H-1B has been chosen under the cap are eligible for cap-gap work authorization.  Many students graduating from US colleges and universities with degrees in physical therapy, occupational therapy, speech language pathology, medical technology, and other allied health professions are eligible for OPT and work on OPT after graduation.   

When the student is approved for OPT, the student receives an employment authorization document (EAD).  This is a plastic card, much like a driver’s license, which shows the student’s photo and biographic information.  An OPT EAD Card is pictured here:




The validity dates of the OPT work authorization are listed near the bottom of the card.  In the case above, the student’s OPT work authorization expires on July 14.  Assuming this student’s H-1B petition has been selected under the H-1B cap, the student is eligible to apply for cap gap work authorization to extend his OPT work authorization from July 15 to October 1 when the H-1B begins.

The cap gap extension is not automatic.  The student should present the H-1B receipt notice showing his/her H-1B has been selected to the international student office at his/her school.  The school will issue a new I-20 to the student showing the OPT has been extended to October 1.  Employers should use this new I-20 to re-verify the student’s I-9 work authorization through October 1. 

Tuesday, May 12, 2015

JUNE 2015 VISA BULLETIN

The Department of State has just released the June 2015 Visa BulletinThis is the ninth Visa Bulletin of the 2015 Fiscal Year.  

The retrogression of the Philippines EB-3 continues.  To insure that no Philippine EB-3 visas are issued, the Department of State has again moved the Philippine EB-3 back, this time to January 1, 2005.

This cannot be good news, although MU still believes that the dates will progress in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.  This  month's forthcoming Check-in with Charlie will also likely provide some insight. 

The news was much better for the other categories.  India EB-2 leaped ahead to October 1, 2008, which is a progression of almost six months.

India EB-3 only moved up one week to January 22, 2004.  All Other EB-3 moved into February 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved one full year to June 1, 2013 and EB-3 is now at September 1, 2011.  Both of these dates continue to progress positively.

Employment- Based
All Other
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JUN131OCT08CC
3rd15FEB1501SEPT1122JAN0415FEB1501JAN07

Monday, May 11, 2015

REMINDER: H-4 EADs CAN BE FILED 5/26

Earlier this year USCIS announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015. The full regulation was also published.  We are still awaiting a FAQ from USCIS, which was promised in the spring.  An MU Law FAQ is at the end of this blog post.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.

Musillo Unkenholt H-4 FAQ

Can I file before May 26, 2015?
No.  The USCIS will not accept EAD applications until May 26, 2015.

How long will it take the USCIS to process the EAD Application?
Traditionally EAD Applications take 90-120 days until approval.

Can I work upon the filing of the EAD Application?
No.  The EAD must be approved?

Who qualifies for the new H-4 EAD card?
Certain H-4 spouses may file for the new H-4 EAD.  Children who hold H-4 status are ineligible for the EAD.

Which H-4 spouses may file for an EAD?
In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first set forth in Section 106 of AC21.  The H-1B worker must either:

A.  Hold an approved I-140, Petition for Alien Worker.  The approved I-140 does not need to be from his present employer; or
B.  Have a priority date that is at least one year old.  A priority date can be established by the filing of a PERM Application or a Form I-140.

May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?
No.  The USCIS looks to the H-1B worker to meet A or B, above.  It is irrelevant if the H-4 meets A or B.

Are there any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?
No.  There are no such limitations.  You can work for any employer, at any rate (above minimum wage), and in any occupation.

What should I do if I want to file an H-4 EAD?

EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process.  If you would like MU Law to help, please contact us.

Monday, May 4, 2015

USCIS HAS COMPLETED DATA ENTRY FOR THE H-1B LOTTERY

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in their computer-generated random process.   

With this announcement, USCIS acknowledges that H-1B receipt notices have been mailed.  Petitioners have probably not received all possible H-1B receipt notices because these Receipt notices are snail-mailed.

USCIS should shortly begin returning all H-1B cap-subject petitions that were not selected.  Due to the high volume of filings, the time frame for returning these petitions is uncertain.  Based on past years, MU Law believes that it may take longer than one month until all petitions are returned.

USCIS will issue an announcement once all the petitions have been returned.

Saturday, April 25, 2015

CGFNS, ICN LAUNCH RESEARCH WEBSITE

The International Centre on Nurse Migration (ICNM) was created by the Commission on Graduates of Foreign Nursing Schools (CGFNS) International and the International Council of Nurses (ICN). ICNM develops and promotes research, policy and information on global nurse migration. 

The ICMN has launched a website aimed at being a significant resource for research and information.  The website is www.intlnursemigration.org.  From their press release:

The new website features a bold, user-friendly web interface to easily access news, resources, and ICNM publications. eSource, a new website feature, offers a platform for new and experienced researchers to share articles, reports, papers or presentations on migration related issues with other researchers and the public.

Tuesday, April 21, 2015

DOS: WE HOPE TO PROGRESS PHILS EB-3 IN THE SUMMER

AILA has discussed the Philippine EB-3 retrogression with Charlie Oppenheim, who is the Department of State’s Chief of the Visa Control and Reporting Division.  Mr. Oppenheim is the person at DOS who writes and produces the Visa Bulletin.

While he cannot speculate as to future dates, he “hopes to advance the cut-off date throughout the summer.”  This statement is consistent with MU Law’s April 14, 2015 blog posting on this issue.

USCIS demand for Philippine EB-3 visa numbers has increased.  The DOS says that 2,000 Philippine EB-3 visa numbers were requested in the six week period leading to the publication of the may Visa Bulletin, which is a massive increase from Fiscal Year 2014 (Oct 1, 2013 – Sept 30, 2014).  FY2014 saw a total of 3,275 Philippine EB-3 immigrant visas used.

MU Law expects that the Philippine EB-3 number will return to 2014 or even 2015 in the forthcoming months.  However if Philippine EB-3 demand continues the Philippine EB-3 number may eventually retrogress negatively, although it is too early to specifically estimate Visa Bulletin dates in calendar year 2016.

Monday, April 20, 2015

MU LAW H-1B TELECONFERENCE APRIL 22, 2015

MU Law will be holding a free teleconference for our clients on April 22,
2015 at 2PM ET / 11AM PT.  Interested clients should email MU’s Annalisa
Smith, who can register you for the teleconference.

The agenda will include:

1.       H-1B cap update.

2.       Analysis of the new H-1B ruling, Matter of Simeio Solutions, which
mandates a new or amended H-1B petition whenever there is a change in the
employment location.

3.       What the new Visa Bulletin means for the Philippines EB-3
category.

4.       Hot topics in PERM adjudications.

5.       Legislative update.

Wednesday, April 15, 2015

BREAKING: MANILA EMBASSY TO EXPEDITE EB3 IMMIGRANT VISA APPOINTMENTS


The US Embassy in Manila has waived the requirement for making an appointment for a visa interview for those who are affected by the retrogression (priority dates on or after July 01, 2007) and have never been interviewed. Once applicants have all the required documents and have completed the medical examinations at St. Luke's Extension Clinic, they may come to the Embassy's Immigrant Visa Check-in Counter on any workday between 7:30 a.m. and 8:30 a.m. from April 15, 2015 through April 28, 2015 for the visa interview.

More on their webpage:

MAY 2015 VISA BULLETIN

The Department of State has just released the May 2015 Visa BulletinThis is the eighth Visa Bulletin of the 2015 Fiscal Year.  

The big news was the massive retrogression of the Philippines EB-3.  This was completely unexpected.  MU Law believes that the Philippine EB-3 retrogression is a temporary situation that should correct itself in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.

The news was much better for the other categories.  India EB-2 has progressed to April 15, 2008, although India EB-3 only moved up one week to January 15, 2004.  All Other EB-3 moved into January 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved to June 1, 2012 and EB-3 is now at May 1, 2011.  Both of these dates continue to progress positively.

Employment- Based
All Other
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JUN1215APR08CC
3rd01JAN1501MAY1115JAN0401JAN1501JUL07