JUNE 2020 VISA BULLETIN: PROGRESS FOR PHILS AND WW EB-3; EB-1

The Department of State has just issued the June 2020 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

June 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	15AUG17	08JUN16	C
2nd	C	01NOV15	12JUN09	C
3rd	08NOV17	15JUN16	01APR09	08NOV17

MU Law Analysis

This was another eagerly anticipated Visa Bulletin.  The DOS moved the Philippines and Worldwide EB-3 ahead by 10 months, which is encouraging.  The Indian and Chinese EB-3 dates moved ahead one month, which is also a promising sign. It would not surprise us to see another big progression in the July Visa Bulletin, especially for the Philippines and Worldwide EB-3s. 

The EB-1 movements were also reassuring.  India EB-1 progressed 10 months.  China EB-1 advanced by a month.  The Indian and Chinese EB-2 dates also moved ahead, with India progressing by 10 days and China by one month.  These progressions could mean that more visa numbers flow down to other categories.

MU continues to believe that the State Department should be accelerating these dates at a faster rate and will need to aggressively accelerate the dates in the next few months in order to ensure that all visas are used in fiscal year 2020.  We have said this for several months.  Very few immigrant visas have been issued in the last 60 days because of the COVID-19 crisis. 

Conspiracy rumors are out there.  Some are speculating that the White House is interfering and illegally holding back progressions. The State Department did not include any comments at the end of the Visa Bulletin.  This lack of transparency from the State Department is feeding the speculation.  At the very least the State Department should explain how it expect to use this year’s full allotment of immigrant visas.

TWENTY HOUSE CO-SPONSORS ON HR 6788 (HWRA)

Everyone has been working hard to drum up support for the HWRA in the Senate.  We have not however forgotten about the House and bill HR 6788.  We are pleased to announce that the bill now has 20 co-sponsors in the House of Representatives. We continue to have a bipartisan mix of House members from both the Democrats and Republicans, which is the best way to advance this important legislation.

Rep. Cole, Tom [R-OK-4]*

Rep. Finkenauer, Abby [D-IA-1]*

Rep. Bacon, Don [R-NE-2]*   

Rep. Rose, Max [D-NY-11]   

Rep. Woodall, Rob [R-GA-7]  

Rep. Cox, TJ [D-CA-21]  

Rep. O'Halleran, Tom [D-AZ-1]   

Rep. Swalwell, Eric [D-CA-15]   

Rep. Yoho, Ted S. [R-FL-3]   

Rep. Khanna, Ro [D-CA-17]   

Rep. Meng, Grace [D-NY-6]   

Rep. Peters, Scott H. [D-CA-52]   

Rep. Moolenaar, John R. [R-MI-4]   

Rep. Stewart, Chris [R-UT-2]   

Rep. Brooks, Susan W. [R-IN-5]   

Rep. Blunt Rochester, Lisa [D-DE-At Large]   

Rep. Johnson, Eddie Bernice [D-TX-30]   

Rep. Hayes, Jahana [D-CT-5]  

Rep. Hartzler, Vicky [R-MO-4] 

Rep. Bishop, Sanford D., Jr. [D-GA]

FOURTEEN SENATE CO-SPONSORS ON HWRA S.3599

Everyone has been working hard behind the scenes to drum up support for the HWRA.  We are pleased to announce that the bill now has 14 co-sponsors in the Senate.  We continue to have a bipartisan mix of Senators from both the Democrats and Republicans, which is the best way to advance this important legislation. In addition to Sen. Perdue (R-GA), we have:

Cosponsor
Sen. Durbin, Richard J. [D-IL]*
Sen. Young, Todd [R-IN]*
Sen. Coons, Christopher A. [D-DE]*
Sen. Cornyn, John [R-TX]*
Sen. Leahy, Patrick J. [D-VT]*
Sen. Paul, Rand [R-KY]
Sen. Carper, Thomas R. [D-DE]
Sen. Lankford, James [R-OK]
Sen. Wyden, Ron [D-OR]
Sen. Rounds, Mike [R-SD]
Sen. King, Angus S., Jr. [I-ME]
Sen. Ernst, Joni [R-IA]
Sen. Moran, Jerry [R-KS]

HWRA HOUSE BILL FORMALLY INTRODUCED

Members Brad Schneider (D-IL), Tom Cole (R-OK), Abby Finkenauer (D-IA), and Don Bacon (R-NE) introduced the HWRA into the US House of Representatives on May 8, 2020.  This is the House version of Senate bill S. 3599.  As with the Senate co-sponsors, this is another strong, bipartisan group of Representatives who are doing right by US patients and valuing the contributions of hard-working immigrants.

If enacted, the HWRA would:

-Grant visas to doctors (15,000), nurses (25,000), and their families (unreserved);

-Exempt HWRA visas from the per-country cap;

-Instruct DHS and DOS to prioritize these visa appointments so that these fully-qualified nurses can enter the US as fast as their visa appointments can be scheduled; and

-Mandate that employers attest that these immigrants will not displace an American worker.

HWRA FORMALLY INTRODUCED AND ASSIGNED S.3599

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act has been introduced into the Senate and assigned S. 3599.

The bill is up to six co-sponsors! 

Three Republicans: David Perdue (GA), Todd Young (IN), and John Cornyn (TX).

Three Democrats: Dick Durbin (IL), Chris Coons (DE), and Patrick Leahy (VT).

We expect to continue to grow this strong base of original co-sponsors.  We shortly will be announcing a companion bill in the House, with another impressive group of House members.

You may want to follow us on Facebook or Twitter for breaking news on this important bill.

MU on Facebook: https://www.facebook.com/MusilloUnkenholtLLC/

Chris Musillo on Twitter: https://twitter.com/ChrisMusillo  @ChrisMusillo

HEALTHCARE WORKFORCE RESILIENCE ACT FAQ

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act has been introduced into Congress.  The HWRA is smart, positive legislation that will increasing the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers.  Musillo Unkenholt and the AAIHR have been working closely with these offices for the last two months, assisting congressional staffers in drafting this legislation.

This is our FAQ about the legislation.

How does this help nurses and doctors currently in retrogression?

If the HWRA becomes law, all nurses and doctors whose visa applications are currently retrogressed immediately become current.  Likewise, any nurse or doctor whose I-140 is filed any time before 90 days after President Trump’s Emergency Declaration on COVID-19 also receives a retrogression-free visa, although there is an overall quota of 25,000 for RNs and 15,000 for MDs. 

What is retrogression?

There are thousands of fully qualified nurses and doctors who have been approved for US green cards but who are not in the US because of “visa retrogression.”  “Visa retrogression” is when a fully qualified visa applicant has to wait for a visa to become available because the EB-3 visa category is oversubscribed.  Right now, fully qualified Philippine and worldwide nurses must wait four years for a visa appointment because of the visa retrogression.  Indian nurses and doctors have a twelve year wait.

This legislation prioritizes fully qualified nurses and doctors by utilizing a portion of the hundreds of thousands of visas that have been authorized by Congress but have gone unused.

Does this legislation add any visas into the quota?

No. This legislation does not add visas to the overall visa quotas.  Likewise, it does not take visas from any other occupation.

The HWRA uses visas that Congress had previously authorized, but had gone unused from 1992-2020. 

Can spouse and children also receive immigrant visas?

Yes.  Spouse and under-21 children obtain visas at the same time as the nurse.  They may also follow to join.  These family members do not count against the overall 25,000 RN and 15,000 MD visa quota.

Are these nurses qualified to work in the US?

Absolutely.  Before any nurse can enter the US, the nurse must have:

(i)          Passed the US nursing licensing exam;

(ii)   Graduated from a university that is equivalent to a US nursing school;

(iii)       Passed an English fluency examination; and

(iv)       A spotless overseas nursing license. 

What protections are there for US labor?

Before the visa is issued, the employer must attest that the foreign trained nurse “has not displaced and will not displace a United States worker.’’

HEALTHCARE WORKFORCE RESILIENCE ACT PROVIDES NEEDED NURSES FOR US PATIENTS

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act will be introduced into Congress next week.  The HWRA is smart, positive legislation that will increase the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers.  Musillo Unkenholt and the AAIHR have been working closely with these offices for the last two months, assisting congressional staffers draft this legislation.

If the HWRA becomes law, all nurses and doctors whose visa applications are currently retrogressed immediately become current.  Likewise, any nurse or doctor whose I-140 is filed anytime before 90 days after President Trump’s Emergency Declaration on COVID-19 is also expected to have a retrogression-free visa, although there is an overall quota of 25,000 visas for RNs and 15,000 visas for MDs.  The legislation contains language asking the USCIS and Embassies and Consulates to expedite these petitions.  The HWRA admirably contains US worker protections, guaranteeing that no US worker is displaced.

The HWRA has a strong set of original co-sponsors in the Senate: Sens. Perdue (R-GA), Young (R-IN), Durbin (D-IL), and Coons (D-DE).  This is an impressive bipartisan set of Senators with decades of experience leading legislative initiatives. 

In sum, the HWRA, with respect to nurses, does the following:

-Allows all fully-qualified foreign-educated nurses to have their visas granted, if they are currently in the retrogression queue or file their I-140s within ninety days of the President’s Emergency Declaration; and

-Instructs DHS and DOS to prioritize these visa appointments so that these fully-qualified nurses can enter the US as fast as their visa appointments can be scheduled.

SAY IT AGAIN: THE H-1B DOES NOT TAKE AWAY US WORKER'S JOBS

I run a version of this post every few years.  Here is the 2015 version.  The Economist liked the chart in that version of the post, replicating it here.   The data leads to the unimpeachable conclusion that the H-1B visa does not take away US workers jobs.  The H-1B visa fills jobs in industries where it is nearly impossible to find qualified US workers.

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap was reached. In 2010, it took 300 days until the H-1B cap was reached.  In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached.  Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, and every year since 2013, mirroring the low unemployment rate.

My chart from 2015.

 

The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why?  Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.  If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

The President and his hackneyed hatchet man Steven Miller do not believe in data.  The President recently signed a ridiculous Executive Order limiting permanent residency visas (green cards) for 60 days.  The Order accomplishes nothing, but may set the table for a broader visa ban, which could include H-1Bs and other temporary visas.

Miller recently said that "the most important thing is to turn off the faucet of new immigrant labor,” as if this will save American jobs.  It won’t.  Limiting immigrant labor has never saved a single American job and it never will. 

Miller is plainly not interested in the American economy.  He gave away his real interest when he said that the temporary ban would limit "chains of follow-on migration."  That is Miller’s real interest: stopping all forms of legal migration, which he believes waters down American culture.  His goal is to centrally plan American culture in his image.

Politicians should see employment visas for what they are -- tools for growing industries to fill labor shortages.  Organizations -- and governments -- work better when they work on data and not on nonsense and rhetoric.

____

Here is an updated version of the chart.  The most important part of the data looks at the spike in unemployment from 2008-2014.  It is worth nothing that since 2014 we have had record levels of H-1B petitions, and full employment.

(Click on the chart to expand)

USCIS EXTENDS SUSPENSION OF IN-PERSON SERVICES DUE TO COVID-19

The USCIS has extended its suspension of all in-person services until at least June 4, 2020.  This cancellation includes interviews for green card cases, Naturalization ceremonies, and biometrics appointments. USCIS will send notices to all applicants and petitioners with scheduled appointments impacted by this closure and all appointments will be automatically rescheduled when services resume. 

The USCIS will re-use biometric information already on file in order to process applications for Employment Authorization Documents (EADs). 

USCIS staff continue to adjudicate cases and complete work that does not involve contact with the public.  USCIS will provide emergency services where the situation warrants doing so.

MAY 2020 VISA BULLETIN

The Department of State has just issued the May 2020 Visa Bulletin. This is the eighth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

May 2020 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	C	15JUL17	01AUG15	C
2nd	C	01OCT15	02JUN09	C
3rd	01JAN17	15MAY16	01MAR09	01JAN17

MU Law Analysis

This was an eagerly anticipated Visa Bulletin, but it disappointed.  MU continues to believe that the State Department will need to aggressively accelerate the dates in the next few months in order to ensure that all visas are used in fiscal year 2020.  The fact that the State Department did not include any comments at the end of the Visa Bulletin, after such a long delay in publication, was also discouraging.  MU will be asking questions to the DOS in order to try and get more answers.  We will publish those answers as they become available.

PRESIDENTIAL PROCLAMATION REGARDING TEMPORARY HAULT TO IMMIGRATION DUE TO COVID-19

President Trump has issued a Presidential Proclamation to temporarily stop the issuance of all immigrant visas (green cards) at Embassies abroad for sixty days effective midnight on April 23, 2020.  Contrary to the overarching language used in the President’s original tweet, the text of the Proclamation reveals that it will have very little impact on business immigration.

Importantly, this Proclamation does not apply to those who are already in the United States and applying for a green card, nor does it apply to those entering the US on a nonimmigrant visa, such as H-1B, TN, L-1, for F-1.  The Proclamation does not bar nonimmigrant visa extensions or transfers.

The Proclamation only applies to all those who are:

• outside of the United States between April 23, 2020 – June 23, 2020; and
• not in possession of either a valid immigrant visa or an official travel document, e.g. Advanced Parole; and
• Not one of the categories of immigrants who are exempt from the Proclamation.  

Specific categories of those seeking to enter the US on an immigrant visa are exempt from Proclamation. The exempt groups are:

• Permanent Residents of the US;

• Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);

• Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date). 

• Spouses and children of US Citizens;

• EB-5 investors;

• Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;

• Special Immigrants in the SI or SQ Class and their family members; and

• Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

The Proclamation may be extended beyond sixty days if President Trump deems it necessary to do so.  If you have questions about your application and whether you are exempt from the Proclamation, please contact your MU attorney.

GOVERNMENT AID, COVID-19, AND PUBLIC CHARGE CONCERNS

Since the Covid-19 outbreak, many questions have arisen concerning government aid, its availability to foreign nationals, and the impact acceptance of various types of government aid will have on the public charge analysis.  Below is a summary of the available government aid and information about its impact on foreign nationals’ immigration situation.

Testing, Treatment, and (Potential) Vaccination

• Eligibility: Foreign nationals are eligible for testing, treatment, and any potential vaccine related to Covid-19. 
• Public Charge: Being tested, treated, or vaccinated for Covid-19 will not be considered in the public charge analysis.  The USCIS has specifically stated that “testing, treatment, and preventative care (including vaccines, if a vaccine becomes available) related to COVID-19” will not be considered as part of a public charge determination. 

CARES Act Stimulus

• Eligibility: Foreign nationals may be eligible for the Cares Act stimulus if the foreign national has a social security number and is either (a) a permanent resident, a/k/a green card holder, or (b) has spent enough time in the US that the foreign national meets the IRS substantial presence test. 
• Individuals who have filed a tax return in 2018 and reported an Adjusted Gross Income (AGI) of up to $75,000 ($150,000 if married/filing jointly) may receive one‑time cash payments of $1,200 ($2,400 if married plus $500 per child).  Those with an AGI over $99,000 ($198,000 for married couples) will not receive a payment.  Some payments may be less for individuals with an income over $75,000 ($150,000 for married couples) but under $99,000 for individuals ($198,000 for married couples). 
• Public Charge: Accepting CARES Act stimulus payments will not be considered in the public charge analysis.  Because the CARES Act stimulus payments are considered tax credits, they will not be considered under the public charge analysis.  The public charge rule is clear that tax credits, including the Earned Income Tax Credit and Child Tax Credit, are not taken into account for the purpose of the public charge rule.

Unemployment

• Eligibility: Eligibility for unemployment varies from state to state.  You should contact an employment law attorney in your state to determine if you are eligible for unemployment benefits.
• Public Charge: Applying for and accepting unemployment will not be considered in the public charge analysis.  The public charge rule explicitly states unemployment benefits are not considered “public benefits” under the public charge inadmissibility determination as unemployment is considered an earned benefits. 

UPDATED: IMMIGRATION CLOSURES AND UPDATES AS A RESULT OF COVID-19

Due to the COVID-19 pandemic, there are a variety of closures and suspensions of immigration services.  Below is a summary of all closures and suspensions at this time.  This list is subject to change as new updates become available. 

US Citizenship and Immigration Service:

Immigration Filings: The USCIS recently announced that it may excuse some delays in filing immigration cases in a timely manner. USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond the applicant’s control, such as those that may be caused by COVID-19.

Effective March 20, 2020 the USCIS has announced the immediate and temporary suspension of premium processing on all I-129s (L-1s, H-1Bs, TNs) and I-140s.

For all cases where an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) was issued between March 1, 2020 and May 1, 2020, the USCIS will allow an automatic 60-day extension to the due date. 

Interviews and In-Person Appointments: The USCIS has suspended all in-person services until at least May 3, 2020.  The USCIS has also announced that it will re-use biometric information already on file in order to process applications for Employment Authorization Documents (EADs). 

Electronic Signatures: Due to the National Emergency, USCIS will accept scanned, faxed, or photocopied, original signatures. 

Department of State:

US Embassies: Effective March 20, 2020 the Department of States has also suspended interviews in an effort to slow the spread of Covid-19.  If you are a medical professional, please see our previous blog post about interviews for medical professionals. 

Travel Restrictions: 

Out of the US: On March 19, 2020, the Department of State has issued a Level 4 warning, advising all US Citizens to avoid all international travel. 

Into the US: Travel bans have been issued restricting travel to the US for individuals who have traveled to several countries within in the last 14 days.

The following individuals are exempt from the travel ban:

• US Citizens and Lawful Permanent Residents;
• Spouses of US Citizens and Lawful Permanent Residents;
• Parents or legal guardians of US Citizens of Lawful Permanent Residents, provided that the child is unmarried and under the age of 21;
• Siblings of US Citizens or Lawful Permanent Residents, provided both are unmarried and under the age of 21;
• Children who are under the legal custody of US Citizens or Lawful Permanent Residents; and
• Other certain foreign government and health officials.

Stay Safe and Healthy and Please Remember to Wash Your Hands Regularly.

USCIS RECEIVES 275,000 H-1B CAP REGISTRATIONS

USCIS announced that it has received “nearly” 275,000 H-1B cap registration during the March 1-20 filing period, including petitions filed for the advanced degree exemption.  This is considerably more than the 190,000 H-1B petitions received during the April 2018 (Fiscal Year 2019) filing period and 201,000 during the April 2019 (FY 2020) filing period.

USCIS is in the process of notifying H-1B cap lottery winners.  Based on the Congressional H-1B cap of 85,000 H-1B cap winners, Petitioners should expect about 31% of their H-1B cap filings to be H-1B cap winners because Congress only allows the USCIS to approve H-1B cap petitions.  H-1B winners have 90 days to submit their full H-1B cap petition to the USCIS. 

MU Law’s numbers track the USCIS macro-number.  So far, we have received notice that about 30% of our total registrations are H-1B cap winners.  MU Law is in the process of contacting H-1B winners. 

Unlike in past years, the USCIS will continue to update the H-1B cap winners list.  Therefore, additional winners may be added throughout the spring and summer.  USCIS is not expected to contact any H-1B lottery losers until all 85,000 approval notices are issued or the end of the 2021 fiscal year.

UPDATED: IMMIGRATION CLOSURES AND UPDATES AS A RESULT OF COVID-19

Due to the COVID-19 pandemic, there are a variety of closures and suspensions of immigration services.  Below is a summary of all closures and suspensions at this time.  This list is subject to change as new updates become available. 

US Citizenship and Immigration Service:

Immigration Filings: USCIS will continue to perform duties that do not involve contact with the public.  Petitions will continue to be accepted for filing and adjudicated by the USCIS.  Effective March 20, 2020 the USCIS has announced the immediate and temporary suspension of premium processing on all I-129s (L-1s, H-1Bs, TNs) and I-140s.

For all cases where an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) was issued between March 1, 2020 and May 1, 2020, the USCIS will allow an automatic 60 day extension to the due date. 

Interviews and In-Person Appointments: The USCIS has suspended all in-person services until at least May 3, 2020.  This cancellation includes interviews for green card cases and biometrics appointments. USCIS will send notices to all applicants and petitioners with scheduled appointments impacted by this closure and all appointments will be automatically rescheduled when services resume.  The USCIS has also announced that it will re-use biometric information already on file in order to process applications for Employment Authorization Documents (EADs). 

Electronic Signatures: Due to the National Emergency, USCIS will accept scanned, faxed, or photocopied, original signatures.  For forms that require an original “wet” signature, including the I-129, I-140, and I-485, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency.

Department of State:

US Embassies: Effective March 20, 2020 the Department of States has also suspended interviews in an effort to slow the spread of Covid-19.  As resources allow, embassies and consulates will continue to provide emergency services. Appointments and interviews will resume as soon as possible.  If you are a medical professional, please see our previous blog post about interviews for medical professionals. 

Travel Restrictions: 

Out of the US: On March 19, 2020, the Department of State has issued a Level 4 warning, advising all US Citizens to avoid all international travel.  US Citizens who do not live in the United States should arrange for immediate return to the US or prepare to remain abroad for an indefinite period of time.  Many countries are experiencing COVID-19 outbreaks and are implementing travel restrictions, quarantines, and closed borders.

Into the US: Travel bans have been issued restricting travel to the US for individuals who have traveled to: Austria, Belgium, Mainland China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Iran, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland, United Kingdom, within in the last 14 days.

The following individuals are exempt from the travel ban:

• US Citizens and Lawful Permanent Residents;
• Spouses of US Citizens and Lawful Permanent Residents;
• Parents or legal guardians of US Citizens of Lawful Permanent Residents, provided that the child is unmarried and under the age of 21;
• Siblings of US Citizens or Lawful Permanent Residents, provided both are unmarried and under the age of 21;
• Children who are under the legal custody of US Citizens or Lawful Permanent Residents; and
• Other certain foreign government and health officials. 

 On April 11, 2020 officials will reassess COVID-19 travel bans.

Stay Safe and Healthy and Please Remember to Wash Your Hands Regularly