Tuesday, September 1, 2015

USCIS ALLOWS ANYONE TO PAY IMMIGRANT FEE

In February 2013, the USCIS launched a new Immigrant visa fee  of $165.00 for Consular Processed Immigrant Visa (green card) appointments.  This fee does not apply to I-485, Applications for Adjustment of Status.

Applicants pay online through the USCIS website after they receive their visa package from Department of State and before they depart for the United States.

USCIS has now simplified the process for paying the USCIS Immigrant Fee online in their electronic immigration system.  USCIS says that the revised payment process reduces the amount of information an immigrant must provide to USCIS.

Notably, anyone can now pay the fee, as long as they have the immigrant’s Alien Registration Number (A-Number) and DOS Case ID.

The USCIS Immigrant Fee is required for individuals immigrating to the United States as lawful permanent residents. USCIS uses this fee to process, produce, and deliver Permanent Resident Cards (Green Cards).

Friday, August 28, 2015

REMINDER: MU Law Client Conference Call

Musillo Unkenholt will hold a free teleconference on Thursday September 3, 2015 at 3PM ET / 12 noon PT.  All clients and friends of the firm are encouraged to dial-in to the call.  If you would like to register for the call, please send an email to: Annalisa@muimmigration.com.

The agenda for the teleconference includes:
* H-1B onboarding starts Oct 1: What do employers need to do to stay compliant?
* When does my H-1B worker have to start working?  The 30/60 day rule.
* Update on the Simeio Solutions case and Amended H-1Bs.
* When do I have to start paying an H-1B worker's salary?
* Form I-9 compliance
* E-Verify compliance
* Managing Social Security number issues.
* Handling Professional licensure issues.
* Working with the Consulate for H-1B Visa Issuance.
* H-1B cap 2015 final numbers and projections for 2016

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.

Tuesday, August 25, 2015

USCIS DISCONTINUING LEGACY E-FILING

USCIS is discontinue its legacy e-Filing system and will be rolling out a new system called the Electronic Immigration System.  A date for the launch of the new system has not been announced.

USCIS expects that the new system will be faster, more secure, and easier to upgrade and update.  Importantly, the new systems will have high data security standards.

The last day to start new forms in the present system is August 30, 2015. The old system will be decommissioned on September 20, 2015.  After September 20, all forms must be filed via hard, paper copy. 

The legacy e-Filing system has offered online filing for several USCIS forms, although it was never widely accepted by users.  MU Law rarely used the e-filing system, as it offered no tangible benefits to petitioners and had several detriments. 

It remains to be seen if the new proposed system will enhance user experience.  It is worth noting that the Department of Labor’s on-line PERM system just celebrated its 10th anniversary.  While the PERM system is not perfect, it achieves its goals and is a good model for the USCIS to emulate.

Thursday, August 20, 2015

MU LAW CLIENT CONFERENCE CALL

Musillo Unkenholt will hold a free teleconference on Thursday September 3, 2015 at 3PM ET / 12 noon PT.  All clients and friends of the firm are encouraged to dial-in to the call.  If you would like to register for the call, please send an email to: Annalisa@muimmigration.com.

The agenda for the teleconference includes:

* H-1B onboarding starts Oct 1: What do employers need to do to stay compliant?
* When does my H-1B worker have to start working?  The 30/60 day rule.
* Update on the Simeio Solutions case and Amended H-1Bs.
* When do I have to start paying an H-1B worker's salary?
* Form I-9 compliance
* E-Verify compliance
* Managing Social Security number issues.
* Handling Professional licensure issues.
* Working with the Consulate for H-1B Visa Issuance.
* H-1B cap 2015 final numbers and projections for 2016

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.

Wednesday, August 12, 2015

SEPTEMBER 2015 VISA BULLETIN

The Department of State has just released the September 2015 Visa Bulletin. This is the final Visa Bulletin of the 2015 Fiscal Year.  In mid-September the DOS will issue the first Visa Bulletin of Fiscal Year 2016.

The bizarre retrogression of the Philippines EB-3 continues.  Although the July Visa Bulletin showed that Philippine EB-3 was unavailable, and the August 2014 Visa Bulletin showed a June 1, 2004 priority date, this Visa Bulletin lists December 22, 2004.    This means that there are a few available visas for this fiscal year.  Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3.

India EB-3 and China EB-3 also have priority dates of December 22, 2004.

All Other EB-3 is essentially current, with a date of August 15, 2015.  This is great news for all EB-3s, other than Philippine, China, and India.

India EB-2 retrogressed to January 1, 2006, reflecting continued heavy demand in this category.  As mentioned above, India EB-3 continued to move steadily. It is now at December 22, 2004.  

China EB-2 also reflected heavy demand, retrogressing back to Jan 1, 2006.

Employment- Based
All Other
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JAN0601JAN06CC
3rd15AUG1522DEC0422DEC0415AUG1522DEC04


Tuesday, August 11, 2015

DOL EXPECTS TO REDUCE PERM AUDIT TIMES

Registered Nurses and Physical Therapists are exempt from the Department of Labor PERM Application process because they are Schedule A occupations.  This is a great relief because it saves considerable time.  Other healthcare occupations, notably Occupational Therapist and Speech Language Pathologists, must still avail themselves of the PERM process.

PERM Applications usually take several months to prepare because before a PERM Application can be filed, the employer must test the labor market with a variety of advertisements that may be placed in newspapers, on the internet, and via hard copy Notice posting. 

After the labor market test is complete, the PERM Application is electronically filed with the Department of Labor.  The electronic filing sets the Application’s “priority date”.  The DOL electronically reviews the Application.  The DOL presently is reviewing PERM Applications that have December 2014 priority dates.

A percentage of PERM Applications are selected for auditing.  The audit selection process is generally random, although some factors can increase an Applications chance of being selected.  The biggest downside of the Audit is the processing time. 

The DOL is presently reviewing PERM Applications with a priority date of March 2014, which is about one and a half years from the date of the initial filing of the PERM Application.  If one assumes about 6 months for the pre-filing labor market test, then the total processing time for the PERM process is almost two years.

Fortunately the DOL appears to be aware of the backlogs.  At a recent meeting between AILA and the Office of Foreign Labor Certification, the OFLC said that it expects to see a “considerable reduction” in the audit processing queue.

Monday, August 3, 2015

NVC ERRONEOUSLY TERMINATING IMMIGRANT VISA APPLICATIONS

The National Visa Center has been issuing erroneous letters indicating that immigrant visa applications will be terminated because neither the applicants nor their attorneys have contacted the NVC within one year of notification of the availability of a visa.  These letters are often erroneous because applicants and their attorneys have contacted the NVC during the prior one year.  It appears that the emailed letters were sent by the NVC during the last week of July 2015.  The NVC is aware of their mistake and is taking steps to correct the erroneous letters. A similar issue arose in November 2014.

If you have received one of these emails, MU Law advises you to contact the NVC to make sure that they do not close your immigrant visa application.

The NVC has the right to ordinarily close applications under INA §203(g) for failure to contact the NVC within one year of notification of the availability of a visa.

Tuesday, July 28, 2015

GREEN CARD SIGNATURES UNNECESSARY

Green Cards (also known as Permanent Resident Cards) do not always include the Permanent Resident’s signature on the face of the card.  Beginning in February 2015, the USCIS began waiving the signature requirement for individuals who filed for their Green Card from abroad through the Embassy or Consulate in the home country.   The USCIS may waive the signature requirement in other limited circumstances, such as for children under the age of 18 or individuals physically unable to provide a signature.

When the Green Card is issued without a signature, the card will say “Signature Waived” on the front and back of the card where a signature would normally be located.



Green Cards identify the holder as a Lawful Permanent Resident of the United States and are proof of identity and work authorization.  Green Cards which say “signature waived” are valid for I-9 purposes, as long as the Green Card is unexpired.

Thursday, July 23, 2015

USCIS ISSUES FINAL GUIDANCE ON AMENDED H-1B PETITIONS AFTER SIMEIO SOLUTIONS

The USCIS has again revised its interpretation of the opinion that it issued in the controversial Simeio Solutions decision.  The revised Final Guidance says that the Simeio Solutions decision will not be applied retroactively, which is a significant change from the USCIS’ May 26, 2015 Guidance.  The revised Final Guidance now says that these actions must be taken:


Date of H-1B employee's move
Action
On or before April 9, 2015
No amended H-1B is needed.
April 9 - August 19, 2015
Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015
Must file an amended H-1B once LCA is certified.

H-1B employers should note that generally an H-1B employer has 30 days from the date of the move to file the amended H-1B.  Accordingly, we advise that MU Law is informed of the move immediately, so that we can prepare the LCA and the amended H-1B filing.

The revised Final Guidance reconfirmed that an amended H-1B petition is NOT required if the geographical move is within an “area of intended employment.”  An “area of intended employment” is generally the same as a Metropolitan Statistical Area.  Likewise, an amended H-1B petition is NOT required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration.

The revised Final Guidance also confirms that if an employer's amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition.

Monday, July 20, 2015

DOS: EB-3s MAY MOVE AHEAD “A FEW MONTHS” IN SEPTEMBER

AILA’s “Check In with Charlie” is a monthly discussion with the Department of State’s officer who sets the monthly Visa Bulletin.  This month’s Check In revealed that Charlie thinks that EB-3 China, EB-3 India and EB-3 Philippines all have the potential to move forward a few months in September.  Whether or not the dates move will depend on demand for EB-3 Worldwide through early August.  

Charlie also predicts EB-3 Worldwide and EB-3 Mexico will continue to advance in September.  He expects that these categories dates may hold steady starting in October for a month or two.  This will allow the DOS to see if greater demand from the recent advancement of the cut-off date results in these categories.

India and China EB-2 is expected to remain unchanged for the next month.

Monday, July 13, 2015

USCIS AGAIN ACCEPTING H-1B EXTENSION PREMIUM PROCESSING

Effective immediately the USCIS is again accepting H-1B premium processing extensions petitions, ending a seven week suspension of the program.

In May, the USCIS suspended premium processing for all H-1B extension petitions.  The suspension was because the USCIS feared that the volume of H-1B extension petitions would surge due to the new H-4 EAD rule. 

Rumors persisted that the USCIS might end the suspension earlier than the previously announced July 27 reenactment date.  USCIS closely monitored the demand for the H-4 EADs and are confident that the implementation of the H-4 EAD program has worked well.  Accordingly, the suspension of the H-1B extension premium processing program is over.

Friday, July 10, 2015

AUGUST 2015 VISA BULLETIN

The Department of State has just released the August 2015 Visa Bulletin. This is the eleventh Visa Bulletin of the 2015 Fiscal Year.  

The bizarre retrogression of the Philippines EB-3 continues.  Although the July Visa Bulletin showed that Philippine EB-3 was unavailable, this month shows a date: June 1, 2004.  This means that there are a few available visas for this fiscal year.  Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3.

All Other EB-3 is essentially current, with a date of July 15, 2015.  This is great news for all EB-3s, other than Philippine, China, and India.

India EB-2 remained at October 1, 2008. On the other hand, India EB-3 leapt ahead.  It is now at June 2004.  

China EB-2 improved another two and a half months to December 15, 2013 and EB-3 remained at September 1, 2011.  The story was much different for China EB-3, which retrogressed back to 2004.  Just a few months ago, China EB-3 had actually progressed further than EB-2.  There is now a nearly ten year gap between these two categories.

Employment- Based
All Other
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC15DEC131OCT08CC
3rd15JUL1501JUN0401JUN0415JUL1501JUN2004

The Visa Bulletin also included this notice:

D. CHINA-MAINLAND BORN EMPLOYMENT THIRD, AND THIRD OTHER WORKER VISA AVAILABILITY There was an extremely large increase in applicant demand reported for consideration in the determination of the August cut-off dates. Therefore, it has been necessary to retrogress the Employment Third, and Third Other Worker cut-off dates to hold number use within the FY-2015 annual limit. Every effort will be made to return those categories to the previously announced July cut-off dates as quickly as possible under the FY-2016 annual limits. Those limits will take effect October 1, 2015.

Wednesday, July 8, 2015

EXTENSIONS AND AMENDMENTS ARE ESSENTIALLY NEW PETITIONS

The healthcare staffing and IT staffing industries have seen a large uptick in H-1B amendments being generated as a result of the USCIS foolish Simeio Solutions decision.  One issue that has come as a surprise to many clients is that an H-1B amendment is essentially no less work than a new H-1B cap-subject or H-1B extension petition. 

USCIS policy on deference to prior petitions is explained in a 2004 USCIS Memorandum by William Yates.  Technically, USCIS officers are supposed to give deference in extension petitions unless,

(1) it is determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.  Material error, changed circumstances, or new material information must be clearly articulated in the resulting request for evidence or decision denying the benefit sought, as appropriate.

The problem is that this section is made toothless by the next paragraph:
[t]his memorandum does not in any way restrict or impact an adjudicator’s ability to deny, in the exercise of his or her discretion, the beneficiary’s simultaneous request to extend his or her stay in the United States in the same classification.

As a result, the USCIS only pays lip-service to deference in amendment and extension petitions.  The adjudicating officer will casually mention one of the three instances and then ask for entirely new information.  The officer will usually point to the sentence that the memorandum is not “in any way” meant to restrict the adjudicator’s ability to deny a case.

Essentially all H-1B legal points must be re-raised by the employer and will ultimately be re-adjudicated by the USCIS.  

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.