REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

·   Top 10 things H-1B employers can do to stay compliant

·   Q&A

PLEASE JOIN US!

FEBRUARY 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

February 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	15DEC18	22MAY17	01JAN15	01DEC18
2nd	C	01JUL15	19MAY09	C
3rd	C	01JAN16	08JAN09	01JUN18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 category remained current and is expected to remain current for the foreseeable future.  The EB-3 is current, but the DOS expects to implement a retrogression in March.

China: EB-2 did not move, although EB-3 progressed by a month.  The EB-2 and EB-3 each progressed about one month.  Over the course of FY2020 we expect EB-2 and EB-3 to remain within a few months of each other.

India:  There was virtually no progress for India.  We continue to expect very little progress in either category in future months.

Philippines:  We were encouraged by the three-month progression in EB-3.  We remain surprised by the slow progress of EB-3, although we were encouraged by this month’s progression.  We think that there is a chance of continued progression in the next few months, although the enactment of All Other EB-3 retrogression may mean that fewer visas are available for the Philippines.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

·   Top 10 things H-1B employers can do to stay compliant

·   Q&A

PLEASE JOIN US!

BUSINESS IMMIGRATION OUTLOOK FOR 2020

There are some obvious areas where we can expect to see activity in business immigration 2020.  Here are a few topics that we will keeping our eye on this year:

New H-1B Cap Process

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020.  Please join us for a teleconference on the new H-1B registration system to learn more.  REGISTER.

H-1B Specialty Occupation Rule

The USCIS recently published notice that it intends to revise the definition of specialty occupation, with an aim to restricting the number of people who qualify for the H-1B visa.  It remains to be seen what the revised definition says and whether or not the USCIS oversteps its authority with a new rule.  The USCIS continually is sued on these issues and usually settles the case by reopening and approving the H-1B petition. 

H-1B Employer-Employee Rule

Likewise, USCIS will also seek to revise the H-1B rule by creating a stricter law on who can be an H-1B employer.  USCIS’ own regulation says that its aim is to “to better protect U.S. workers and wages,” which has traditionally been the Department of Labor, not the USCIS’ role.  Again, we expect to see lawsuits if the USCIS exceeds the rules set forth by Congress.

Recession of the H-4 / EAD rule

The Trump Administration has, for years, sought to eliminate the H-4/EAD rule.  A recent USCIS court filing indicates that the rule rescinding work authorization could happen in March. 

NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

·   Top 10 things H-1B employers can do to stay compliant

·   Q&A

PLEASE JOIN US!

JANUARY 2020 VISA BULLETIN: PREDICTIONS AND ANALYSIS

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

January 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	15OCT18	22MAY17	01JAN15	01OCT18
2nd	C	01JUL15	18MAY09	C
3rd	C	01DEC15	01JAN09	15MAR18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: EB-2 did progress by three months.  The EB-2 and EB-3 each progressed about one month.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was just three days’ progress in EB-2 and no progress in EB-3.  We continue to expect very little progress in either category in future months.

Philippines:  We remain surprised by the slow progress of EB-3.  The DOS indicates that the Philippine EB-3 will only be moving one month at a time for the next 3 calendar months, which is slower than our internal metric indicate should be happening.  We are no longer predicting as rosy progressions in early 2020.  

FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT VOTE TABLED UNTIL 2020

Sen. Lee and Durbin have agreed to postpone S. 386 (Fairness for High-Skilled Immigrants Act) until 2020. It seems that Sen. Lee may not have had all of his Republicans on board with some of the latest amendments.

Musillo Unkenholt's analysis on what is in the current version of Act is on our December 17, 2019 blog post.

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT COULD PASS SOON

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year.  On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress.  One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT).  Sen. Lee is bill’s lead sponsor.

The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:

Changes to the Green Card Quota and Process

• Eliminate the per-country visa caps on employment-based workers over a three-year phase in period.  This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
• Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker.  This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families.  These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out.  This provides a great relief to long-retrogressed families.
• There is a 4,400 visa carve-out for Schedule A workers.  As with current law, their immediate family members also take visas at the same time.  This provision will end in 2026.
• There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US.  Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses.  This provision ends in nine years.

 Changes to the H-1B visa

• Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
• H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
• Elimination of the B-1 in Lieu of H-1B business visa rule.
• Additional wage protection for H-1B workers.
• Additional protections for H-1B whistleblowers. 

Next Steps

Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today.  The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year.  After that the President will need to sign the Bill into law, which is expected.

H-1B CAP SEASON 2020: MUST FILE MARCH 1-20, 2020

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020. Accordingly, all MU clients should begin to identify the beneficiaries that they would like to sponsor for the 2020 H-1B cap season. 

The USCIS has not yet announced the specific data that will be required for registration, although they have assured the public that the required information will be “basic.”  There will be a nominal $10 fee for each registration.  After the New Year, MU will hold a webinar teleconference to outline the process for our clients.

PWDs WILL CONTINUE TO TAKE 4 MONTHS (AND OTHER NOTES FROM DOL)

On November 5, 2019 the Department of Labor held a presentation and gave updates to a number of their programs.  AILA has reported on the update.  The updates include:

-DOL expects that PWD processing times will remain at 4 months, despite its goal to get the processing time down to 90 days.

-The Form 9141 (PWD) has been updated and posted to the OMB webpage.  The expectation is that it will go live in mid-2020. Until that time, the current Form 9141 remains valid, even though it lists an expired 10/31/2019 date.

-With the October launch of LCAs on the PERM system, iCert will soon be decommissioned.

-At some point PERM will move to the FLAG system, although it is not expected until 2021 at the earliest.

DECEMBER 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the December 2019 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

December 2019 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	15JUN18	15MAY17	01JAN15	01JUN18
2nd	C	22JUN15	15MAY09	C
3rd	C	01NOV15	01JAN09	01MAR18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: EB-2 did progress by three months.  The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly   equal. 

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines:  We remain surprised by the slow progress of EB-3.  The DOS indicated that demand for Adjust of Status cases is tamping down the promotion of dates.  Of course, Philippines EB-3 uses much less Adjust of Status visas than other categories, which makes this explanation suspect.  We still find the EB-3 priority date to be too conservative, but at this point we are no longer predicting as rosy progressions in early 2020.

MU IS MOVING OUR OFFICE – WE WILL BE CLOSED NOV 14, 15

Musillo Unkenholt will be moving its offices on Thursday November 14 and Friday November 15.  Accordingly, the law office will be closed over those two days.

Our new office will be at 302 W. Third Street.  The official address is:

Musillo Unkenholt LLC

302 West Third Street, Suite 710

Cincinnati, OH 45202

All government agencies have been notified about the move, including USCIS and DOL.  We do not expect any interruption in mail or service.

We are very excited for the move.  We have outgrown our current space.  Our new space is 50% larger than our current space.

If you are in the Cincinnati area on December 13, please let us know.  We will be having an open house in the afternoon.

FEDERAL JUDGE BLOCKS TRUMP’S HEALTH INSURANCE RULE

Over the weekend, a federal judge blocked Pres. Trump’s health insurance rule for immigrant visa applicants.  Under the rule, all intending immigrants would have had to prove that they were going to enroll in a qualifying health insurance plan within 30 days of entering the US. 

There is no timetable for how long the temporary restraining order will remain in effect.

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DECEMBER 2, 2019

On October 30, 2019 the USCIS announced a proposed rule to increase the premium processing fee.  The premium processing fee will be raised from $1,410 to $1,440.  The fee increase will go into effect on December 2, 2019.

 

Premium processing is an optional service currently authorized for certain types of cases, notably filing an H-1B or an I-140. The system allows petitioners to request 15 day processing of these cases if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The USCIS indicates this increase of the premium processing fee reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019 based on the Consumer Price Index for all Urban Consumers (CPI-U).

NFAP: H-1B DENIAL RATES NEARLY 25%

According to a new study by the National Foundation for American Policy, H-1B denial rates for cap-subject petitions has risen “from 6% in FY 2015 to 24% through the third quarter of FY 2019”.  Perhaps more amazing, 12% of extension/amendment H-1Bs are also being denied. 

This NFAP study updates prior NFAP H-1B studies from April 2019 and August 2019.  All of the NFAP data is collected from the USCIS Employer Data hub.

These denials have a grave impact on US healthcare, especially in rural areas who are increasingly relying on foreign-trained labor to augment incredible staffing shortage.  Among the most popular occupations for H-1Bs are: Physical Therapist, Occupational Therapists, and Medical Technologists.

MU will be holding a webinar on Wednesday November 13, 2019 at 2PM / 11AM PT. This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  AGENDA AND REGISTER HERE

HEALTHCARE EMPLOYERS WILL NEED TO UPDATE THEIR HEALTH INSURANCE ENROLLMENT POLICIES

Background

Most foreign educated nurses enter the US through Consular Processing.  Because of the new Presidential Proclamation that goes into effect on November 3, 2019, Musillo Unkenholt recommends that all US employers of foreign nurses -- and all Consular Processed immigrant visas -- immediately evaluate their corporate health insurance programs.  Because immigrants will now need to be enrolled in health insurance programs within 30 days of entry into the US, employer policies may need to be renegotiated.

MU suggests that employers take these steps:

First, review your health insurance policy to confirm that new immigrants will be immediately eligible to enroll in health insurance programs.

Second, draft a letter outlining the employer’s health insurance program for immigrants who are attending Consular Process interviews after November 3, 2019.

Third, continually follow up with these immigrants to make sure that they are enrolled in health insurance programs within 30 days of entry into the US.

Frequently Asked Questions About the new Presidential Proclamation on Health Insurance

If the employer’s program currently calls for new employees to enroll in more than 30 day will this be a problem under the new Proclamation?

Yes.  Immigrants must be offered the ability to be activated in their employer’s health insurance policy within 30 days of entry into the US.

Does the 30 day clock start from when the immigrant reports to work or from when the immigrant enters the US?

The 30 day clock starts from when the immigrant enters the US.  The employee's start date is irrelevant.

What if the immigrant wants to take a few weeks and visit family before beginning with our company?

It does not matter.  The immigrant must be enrolled in the health insurance program before the 30^th day after entry to the US.

What if the immigrant fails to enroll in the health insurance program within 30 days?

The immigrant could conceivably be found to have committed immigration fraud, and could, theoretically, be deportable. There is no liability on the part of the employer if the employee fails to enroll.

Can I ask the immigrant to enroll in market-based state health insurance plan?

Yes.  But the market-based state health insurance plan must be unsubsidized by a US government entity.

Does an employer have to enroll spouses and children of dependents?

In order for spouses and children to be approved for their immigrant visa they must prove to the Embassy/Consular official that they will be enrolled in a health insurance plan within 30 days of entry into the US.  Therefore, the spouses and children must either be eligible for enrollment on the employer’s plan within 30 days of entry into the US or they must convince the Embassy/Consular official that they will be covered under alternative health insurance.

Some of my immigrants enter the US to activate their SSN and state license, but then exit the US after a few days.  These immigrants then re-enter the US after their SSN and state license is issued.  When do these immigrants need to be enrolled under a health insurance policy?

Even though these immigrants will be quickly leaving the US, it is still necessary that they prove to the Embassy/Consular official that they will obtain health insurance within 30 days of their initial entry.

NOVEMBER 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the November 2019 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

November 2019 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	01JUN18	01FEB17	01JAN15	01JUN18
2nd	C	15MAR15	13MAY09	C
3rd	C	01NOV15	01JAN09	01FEB18

MU Law Analysis (all references are to Table A unless noted)

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines: As we expected, EB-3 leapt forward almost 4 months.  We still find the implementation of the EB-3 priority date to be too conservative.  MU expects that this date will continue to rapidly move in the coming months, and could return to current in early 2020.

ANALYSIS OF CURRENT RFE TRENDS AND HOW TO GET YOUR CASE APPROVED

Don't forget to register for our free webinar happening Wednesday November 13, 2019 at 2PM / 11AM PT. We hope to see you there! Click the REGISTER link on the right to sign up!

Register Here

This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  

  

Webinar Agenda:

1.   H-1B issues

·       Specialty Occupation

·       Availability of Work

·       Right to Control

2.   I-140 Issues

·       Bona Fide Offer

·       Ability to Pay

3.   I-485 Issues

·       Maintenance of Status

o   F-1 to Green Card

o   H-1B to Green Card

4.   Q&A

PLEASE JOIN US!

NEW “PUBLIC CHARGE” RULE SUSPENDED

On Friday, October 11, 2019 three Federal Judges in three separate cases stopped the USCIS from implementing the new public charge rule, which included using the new versions of the I-485, I-129, and I-539 as well as the implementation of the new form I-944.  Until final decisions in these three cases are issued or the injunction is lifted, USCIS will accept the older versions of the forms. 

In addition, late last week, the Department of State created their own public charge rule to mimic the new USCIS rule.  According to the latest information, the Department of State rule will still go into effect on October 15, 2019 as planned.  Those obtaining their green card through an Embassy interview will likely need additional documentation to provide at the Embassy interview.  Consult with your MU attorney in this regard.

UPDATE: The State Department public charge rule will take effect tomorrow—but it won't be implemented until a new form is approved, per a @StateDept official via CBS News. 

CBS News:

https://twitter.com/camiloreports/status/1183922125675122688

The State Department public charge rule will take effect tomorrow—but it won't be implemented until a new form is approved, per a @StateDept official.

So, it will not be implemented tomorrow, per the official.

DHS' public charge rule was blocked Friday:https://t.co/97o96v6lUU

— Camilo Montoya-Galvez (@camiloreports) October 15, 2019