VISA BULLETIN PROJECTIONS FOR THE REST OF 2017

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

This month’s Check In With Charlie featured projections for EB2 and EB3, which are the most popular categories for readers of this Blog.  Here are some of this month’s highlights, along with our analysis:

EB-2 Worldwide.  Although there may be a retrogression in September, the Worldwide EB-2 should return to current in October and remain there for the rest of this calendar year.

EB-2 India.  This category is expected to use the full allotment of visas in September, which may result in the category becoming temporarily unavailable.  It should have a July 2008 date in October 2017.

EB-3 Worldwide.  This category will remain current or close to current for the foreseeable future.

EB-3 India.  This category will advance several months in September 2017.  However, because of expected demand in FY 2018 for EB-3 Worldwide, we will not see fast progress after October 2017.  India EB-3 benefited in FY 2017 because demand for Worldwide EB-3 was light, resulting in Worldwide EB-3 numbers spilling into India EB-3.

EB-3 Philippines.  In FY 2018, we will not see this category move nearly as fast as it did in FY 2017. We will have a better idea of where Phils EB-3 is headed with the publication of the October 2017 Visa Bulletin, which is the first of FY 2018.

AUGUST 2017 VISA BULLETIN: ANALYSIS

The Department of State has just issued the August 2017 Visa Bulletin.  This is the eleventh Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

NOTE: Please be sure to read our Post, "What does the August Visa Bulletin Mean?"

August 2017 Visa Bulletin

Applications with these dates may be approved for their Green Card (Permanent Residency card).

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	01JAN12	01JAN12	C	C
EB-2	01APR15	22APR13	22JUL08	01APR15	01APR15
EB-3	C	01JAN12	15JUL06	C	01JUN15

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The slight retrogression is temporary and will revert back to Current in October 2017.  The EB-3 progression has long been effectively current, and is, in fact, current in August.

China (mainland-born):   The DOS instituted a retrogression for China EB-1 with the June Visa Bulletin, which remains.  The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017. 

The China EB-2 date again moved up, by one month.  The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date remains at January 2012, which is where it was in July.  It is now slower than China EB-2. 

India:  As with China, India EB-1 now is retrogressed.  It is expected that this EB-1 retrogression will last until October 2017. 

EB-2 India held steady.  EB-3 India jumped into 2006, last month, which was a pleasant surprise.  It moved up again, this time into mid-2006.  The DOS is clearly trying to ensure that all visa numbers are used in FY2016. 

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead one full year!  This is the second straight one year progression.   The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, 2013, 2014 and half of 2015 EB-3 visas in less than one year.  This is even more positive than we expected.  

Our internal metrics see the Philippine EB-3 number continuing to progress at a rapid clip for the rest of 2017.

The retrogression of the EB-2 (Phils) number is nothing to be concerned about.  It will return to Current in October 2017.  Note that all EB-2s retrogressed, which reflects heavier demand than usual in the entirety of the EB-2 category.  

MU LAW IS NOW ON LINKED IN

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If you are on Linked In, please take a moment a follow MU Law on Linked In.  We will be cross-posting articles and items of interest. 

We also have 1000+ followers on Facebook.  Are you one of our followers?  If not, please follow us there too!

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POST H-1B CAP 2017 & TRUMP ADMINISTRATION WEBINAR

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Come join us as MU Law explores the latest legal topics on the H-1B Cap 2017 & the Trump Administration by hosting a free educational webinar

Who's Invited?

Clients & Friends

When?

June 29, 2017 @ 3PM / 12PM PT

Where? 

The Webinar will take place on Livestorm.co 

Please click the link below to register

Please register for the conference at Livestorm.co

You will be provided a link for the event once registered! 

______________________________________________________________________________________________

This year, the H-1B cap was reached in the first week with approximately 199,000 petition filings. Our webinar will feature in a range of topics including:

Alternatives for employees not chosen in this year’s CAP; Preparing your employee for the consulate interview; H-1B Dependency Rule & Issues with staffing companies; H1-B Amendments; Site Visits, and more.

The webinar will also have a special update on the new Trump Administration. MU Law’s Chris Musillo, who has recently traveled to Washington DC, will provide an update on what potential changes will be coming to employment-based immigration considering the new administration and recently issues memos.

The webinar will last for approximately 90 minutes, including a live Q&A session at the end.

We hope to see you there! 

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For more information on the agenda of the webinar, please see below. Thank you.

1. H-1B Cap 
• Alternatives for employees not chosen in this year's CAP
• Preparing your employee for the consulate interview
• On-boarding an employee
2. H-1Bs in 2017
• H-1B Dependency Rule (LCA & 50/50 rule) 
• H-1B issues for Staffing Companies and Third-Party Placements
• What is Third-Party Placement v. In-House work?
• March 31, 2017 Computer Programmer Memo
• Rescinds the December 22, 2000 Terry Way memo issues to the Nebraska Service Center 
• Implications for future H-1B filings 
• H-1B Amendments 
• Short Term Placement Rule (30-day rule)
• Amendment pending but employee is now moving to new work site. What is the Employer's strategy? 
• Employee is still abroad but work site changes
• Pending H-1B CAP case but the assignment no longer exists 
• Site visits
• How can the Employer prepare for a site visit? 
• How can you prepare your employee for a site visit? 
3. Immigration in the era of the Trump Administration
• Traveling and Consular Process
• Potential regulatory changes 
• Potential legislative changes 
4. Q&A

VISA BULLETIN UPDATE: PHILS EB-3 SHOULD ADVANCE INTO 2015

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

This month’s Check In With Charlie featured predictions about EB2 and EB3, which are the most popular categories for readers of this Blog.  Here are some of this month’s highlights:

Philippine EB-3:  Charlie expects to aggressively move this category into mid/late 2015 before the end of the fiscal year (September 30, 2017).  MU Law believes that the category will continue to be positive, although we do not expect that the significant progression will continue once the Visa Bulletin after the fiscal year, because demand for Philippine EB-3 was heavy in 2016.  Having said that, we do expect continued steady movement forward.

Worldwide EB-3:  This category should continue to be effectively current, with a retrogression of only a few weeks/months.

India EB-2:  Charlie expects minimal movement forward.  Charlie claims that 40 percent of the India EB-2 demand is from India EB-3 upgrades.

India EB-3.  This number will be aggressive advanced because Worldwide EB-3 demand has slowed.  As a matter of process, unused Worldwide EB-3 numbers spill into the slowest EB-3 category (India).

JULY 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2017 Visa Bulletin.  This is the ninth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

July 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	01JAN12	01JAN12	C	C
EB-2	C	22MAR13	22JUL08	C	C
EB-3	08JUN17	01JAN12	15FEB06	08JUN17	15MAY14

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues to be effectively current.

China (mainland-born):   The DOS instituted a retrogression for China EB-1 with the June Visa Bulletin.  The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017. 

The China EB-2 date again moved up, but only a few weeks.  The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date retrogressed.  It is now slower than China EB-2. This was predicted last month.

India:  As with China, India EB-1 now is retrogressed.  It is expected that this EB-1 retrogression will last until October 2017. 

EB-2 India moved up about two weeks.  EB-3 India jumped into 2006, which is a pleasant surprise.  It is not what we expected.  The DOS is clearly trying to ensure that all visa numbers are used in FY2016. 

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead one full year!  The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, 2013, and half of 2014 EB-3 visas in about 7 months.  This is even more positive than we expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

Our internal metrics see the Philippine EB-3 number continuing to progress at a rapid clip for the rest of 2017.

DOL ANNOUNCES HEIGHTENED ENFORCEMENT

On June 6, 2017 US Secretary of Labor, Alexander Acosta, announced new Department of Labor (DOL) actions to enforce work visa programs.  This announcement was made in support of President Trump’s Executive Order on Buy American and Hire American.

The Secretary’s actions are outlined in a news release issued by the DOL. Secretary Acosta has determined it is the policy of the DOL to vigorously and actively enforce laws governing visa programs.  The DOL actions for enforcement include:

• The DOL Wage and Hour Division will conduct more civil investigations and site visits.
• The DOL Employment and Training Administration will develop and propose changes to the LCA (Labor Condition Application) as well as other forms to better identify violations and fraud.  Among other things, the DOL will be looking at how to better monitor LCA filings for violations and prevent fraud with regard to the:

• exemptions for H-1B dependent employers where the employee has a master’s degree or greater or makes $60,000/year or more;
• the rate of pay listed on the LCA; and
• the worksite location(s) listed on the LCA.

• The DOL will actively coordinate with and refer cases to the Inspector General and Attorney General in cases of criminal fraud, which is outside the DOL’s jurisdiction.
• There will be additional training of DOL Officers to detect civil and criminal fraud.
• The DOL will continue to work with the US Department of Justice and US Department of Homeland Security to investigate, detect, and prevent fraud in all visa programs.

The DOL Office of the Inspector General has posted some recent cases on its website.

DINNER AT AILA

Are you an immigration attorney who is going to the AILA Annual Conference in New Orleans?  If so, and if you do not have plans on Thursday evening, please join us for dinner.

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Most years we have about 15-20 people attend. Every year a few new people join the group.

It is a great chance to catch up with old friends (and new ones!). It is a casual event. If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by June 16. Friends, spouses, etc. are also welcome.

USCIS DENYING GREEN CARDS TO OVERQUALIFIED BSN NURSES

MU Law is aware that the USCIS has been denying/issuing RFE/NOIDs on I-140s when nurses hold a BSN.  The USCIS somehow has been finding that BSN nurses are not qualified for nursing positions that require an Associate’s degree in nursing (ASN).  USCIS claims that the I-140 should be denied because the BSN does not meet the exact requirements on the ETA Form 9089.

This is ridiculous decision-making by USCIS.  The BSN is, of course, a higher degree than an Associate’s degree.  BSN nurses are more than qualified for these positions. The law is clear that any I-140 beneficiary can have additional skills, experience, or education beyond the requirements stated in the ETA Form 9089 and still meet the minimum requirements of the position.

MU Law and others have reached out to USCIS through AILA, suggesting that this is a training issue at USCIS .  As per a recent AILA update, USCIS is looking into this issue.  We hope to have a positive update soon.

CHECKING IN ON THE VISA BULLETIN

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

This month’s Check In With Charlie featured predictions about EB2 and EB3, which are the most popular categories for readers of this Blog.  Here are some of this month’s highlights:

EB-3 Worldwide.  Charlie expects EB-3 Worldwide to continue to be “effectively current” for the foreseeable future.

EB-3 India. Charlie predicts that the July final action date for EB-3 India will advance to October 15, 2005, which he reiterated at a May 18, 2017 meeting with AILA in Washington, D.C.

EB-2 India. Previously, Charlie believed that this category will recover to FY2017’s final action date.  Unfortunately, he no longer believes this to be the case.  This category may retrogress or exhaust in August, until October 1, 2017.

EB-3 Philippines.  Charlie did not comment on EB-3 Philippines, but MU Law’s internal tracking indicates that this category will continue to progress at the same rate as the last few months.  

H-1B CAP UPDATE

On May 3, 2017, the USCIS announced that it completed the data entry for the 2017 (FY 2018) H-1B cap season.  MU Law believes that it has received all of the H-1B receipts that it will receive this year.  Our in-house receipt numbers mirror the overall 42% receipt number.

H-1B Cap Approval Notices and RFEs.  Last week, Musillo Unkenholt received its first 2017 H-1B cap approval notices.  We have also received our first 2017 H-1B cap Requests for Evidence.  It is unclear how long it will take the USCIS to issue approvals and RFEs for the H-1B cap cases. 

H-1B Returned Petitions.  Musillo Unkenholt has not yet received any returned H-1B cap-subject petitions from USCIS.  Last year, we continued to receive unselected petitions into August.  Our hope is that the USCIS will be faster in light of the 20% decline in H-1B cap petition filings. 

H-1B Premium Processing.  What is also unknown is the state of the Premium Processing Service (PPS) for H-1B petitions.  In March the USCIS revealed that it would be suspending PPS for all H-1B petitions, including cap-subject, amendments, and extensions, for as long as 6 months.  A 6-month suspension of H-1B PPS means that H-1B PPS could be suspended until October 1, 2017.  USCIS has made no announcement as to whether it will shorten the H-1B PPS suspension since so few H-1B cap petitions were filed.

JUNE 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2017 Visa Bulletin.  This is the eight Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

June 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	01JAN12	01JAN12	C	C
2nd	C	01MAR13	01JUL08	C	C
3rd	15APR17	01OCT14	15MAY05	15MAR17	01MAY13

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional one month.  Consular processed EB-3 are effectively current.

China:   The DOS has instituted a retrogression for China EB-1.  The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017. 

The China EB-2 date again moved up, but only a few weeks.  The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date is being held for the month of June. Continued heavy demand for numbers will require a retrogression of China EB-3  no later than August.

India:  As with China, India EB-1 now is retrogressed.  It is expected that this EB-1 retrogression will last until October 2017. 

EB-2 India moved up about two weeks.  EB-3 India actually moved up almost two months.  It is our expectation that these two categories will move very slowly in the foreseeable future. 

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by yet another four more months.  The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, and half of 2013 EB-3 visas in about 6 months.  This is even more positive than we expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

USCIS COMPLETES DATA ENTRY OF H-1B CAP PETITIONS

USCIS has just announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process.  It may take a week or so for all of the H-1B cap receipts to be delivered.  If a Beneficiary has not received an H-1B receipt notice in the next week or so, it stands to reason that they have not “won” the H-1B lottery.

Shortly, USCIS will begin returning all H-1B cap-subject petitions that were not selected.  USCIS is unable to provide a definite time frame for returning these petitions.  USCIS will issue an announcement once all of the unselected petitions have been returned.

In order to balance the distribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center.  

PT INTERSTATE LICENSURE COMPACT MAY GO LIVE IN 2018

First reported by PT In Motion, The State of Washington became the tenth state to join the Interstate Licensure Compact for Physical Therapy (PTLC).  The tenth state is key because that is the threshold for the Compact to become effective.  

Once fully live, the PTLC will allow PTs in one compact state to practice in another compact state without having to obtain another state PT license.

The ten states are: Washington, Arizona, Kentucky, Mississippi, Missouri, Montana, North Dakota, Oregon, Tennessee, and Utah. 

Before the PTTC can go fully live, a Commission must be developed.  The Commission will establish the rules governing interstate practice.  It is expected that it will take about one year for the Commission to be established and the final rules promulgated.

APTA is optimistic that more states will want to join the PTLC now that the ten state threshold has been reached.  States that are interested in the PTLC should contact the APTA state affairs staff.

COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

One interesting legal question is whether the Trump administration could change the way that H-1B cap-subject petitions are allocated.  Under the current system, if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cap petitions that are filed during the first week of April. 

There is no Congressional authority for the H-1B lottery.  One federal court has said that USCIS’ implementation of an H-1B lottery is reasonable because Congress did not instruct the USCIS what to do if the H-1B cap when oversubscribed.  This case, Walker Macy v. USCIS, was just decided earlier this spring and is now on appeal. 

The Trump administration says that it seeks reform to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  Could the Trump administration attempt H-1B reform by replacing the H-1B lottery with an H-1B prioritization system based on the “most-skilled or highest-paid petition beneficiaries?”

My read is that it cannot.  As noted in the Walker Macy case, “when Congress is silent about a particular agency (or judicial) interpretation for a long period of time after that interpretation while repeated amendments have been passed, this demonstrates legislative acquiescence to the interpretation.”  In other words, the fact that the USCIS has long been using an H-1B lottery is compelling. 

The random process of the H-1B lottery is also fundamentally fair since it treats all timely -filed H-1B petitions identically.  Surprising to some, Congress has not spoken on the need to prioritize the “most-skilled or highest-paid petition beneficiaries”.  In fact, Congress has set forth a different standard. 

An H-1B is appropriate if a US employer is paying at least the prevailing wage of the occupational classification.  There is nothing in the Congressional statute that favors employers who pay a greater wage.  Therefore, it is dubious whether the Trump administration can implement this change to the H-1B lottery without Congressional action.

WHAT TRUMP CAN AND CANNOT DO TO THE H-1B

The US legal and legislative system framework is one checks and balances.  The legislative branch – the Senate and House of Representatives – creates and passes law, which in most instances must also be signed by a President. 

The executive branch, which now is headed by President Trump, is tasked with administering US federal law.  The President typically works through agencies and departments in order to administer the law.  For instance, the Department of Homeland Security administers laws concerning, among other things, US immigration.  The executive branch’s authority is limited by the underlying law that is passed by Congress. 

(As an aside, the President’s authority to administer law is also limited by the third branch of government—the judiciary.  In the short Trump presidency, we have seen several instances where the judiciary has not backed down from exercising their authority and limiting President Trump’s executive action.)

The scope of an underlying Congressional law is what limits the President.  Accordingly, there are some things that President Trump can consider to do, and other things that he probably cannot do.

Here is our list of H-1B-related changes that President Trump can probably because these actions probably do not exceed the underlying Congressional statute.

• Revoke H-4 / EAD authorization.  This rule was put in by President Obama’s administration.  
• Revoke prior Guidance Memoranda that is favorable to the H-1B program.  In fact, he has already started down this path by revoking a 17 year old memorandum on the approvability of Computer Programmers.
• Increase H-1B employer or employee site visits.  Site visits are clearly within Presidential authority.  Again, the USCIS has recently released a press release notifying US employers of increased site visits.
• Increase obtuse/harassing RFEs and NOIDs.  The President has indicated to DHS that it would like to see DHS use all its power to interpret rules against H-1B users.
• Delay Consular approvals under a cloak of “background checks”.  The President generally has wide latitude to process or delay visa approvals.

Our next post will address whether the Trump administration could change the H-1B lottery to a system whereby H-1B lottery slots were awarded based on another criterion, such as the salary offered to the H-1B worker.