Monday, February 19, 2018

H-1B CAP: PAST DEMAND AND 2018 DEMAND

This year’s H-1B filing date of April 1, 2018 is coming fast.  MU Law predicts that H-1B petitioners will file fewer than the 200,000 petitions that were filed last year.  

When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as there are slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

The H-1B is usually associated with IT positons.  Most of the H-1B slots are used by IT professionals.  Many healthcare professions also qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another H-1B employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad

Past H-1B Demand:


Year:
H-1B Cap Numbers:
Date H-1B Cap Reached:
H-1B 2003 (FY 2004)
65,000
October 1, 2003
H-1B 2004 (FY 2005)
65,000
October 1, 2004
H-1B 2005 (FY 2006)
85,000
August 10, 2005
H-1B 2006 (FY 2007)
85,000
May 26, 2006
H-1B 2007 (FY 2008)
85,000
April 1, 2007
H-1B 2008 (FY 2009)
85,000
April 1, 2008
H-1B 2009 (FY 2010)
85,000
December 21, 2009
H-1B 2010 (FY 2011)
85,000
January 25, 2011
H-1B 2011 (FY 2012)
85,000
November 22, 2011
H-1B 2012 (FY 2013)
85,000
June 11, 2012
H-1B 2013 (FY 2014)
85,000
April 1, 2013
H-1B 2014 (FY 2015)
85,000
April 1, 2014
H-1B 2015 (FY 2016)
85,000
April 1, 2015
H-1B 2016 (FY 2017)
85,000
April 1, 2016
H-1B 2017 (FY 2018)
85,000
April 1, 2017
H-1B 2018 (FY 2019)(projected)
85,000
April 1, 2018

Monday, February 12, 2018

VISA BULLETIN MARCH 2018: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2018 Visa Bulletin.  This is the sixth Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

March 2018 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.

EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL'PNES    
EB-1
C
C
C
C
EB-2
C
01DEC13
15DEC08 
C
C
EB-3
15NOV14
01JAN07 

01MAY16       

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL'PNES    
EB-1
C
C
C
C
EB-2
C
01FEB13
08FEB09 
C
C
EB-3
01JAN16
01JAN08 

01OCT16       

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

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  Both China EB-2 and EB-3 favorably progressed, each by two months in Table A.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.  A note at the end of the February Visa Bulletin says that both China EB-2 and  EB-3 should move several months in the near future.

India:  Both India EB-2 and EB-3 progressed.  EB-2 only progressed by one week.  EB-3 moved ahead by 4 weeks.  A note at the end of the February Visa Bulletin says that India EB-3 should move 1-3 months in the near future.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date moved two months, which is its best movement in FY2018. This may reflect the fact that I-485 processing times may slow because of the new I-485 EB interview requirement.  If EB I-485 interview times slow, it will cause the DOS to free up more visas for Consular Processing petitions.  This is also reflected in the fact that EB-3 Table B moved three months.  A note at the end of the February Visa Bulletin says that we should expect one month movements in EB-3. MU is slightly more optimistic than this projection.

Wednesday, February 7, 2018

H-1B CAP 2018: NEWS AND NOTES

The H-1B cap filing date will be here before you know it.  New H-1Bs are subject to the H-1B cap and must be filed on April 2-6, 2018, for a start date of October 1, 2018.  The USCIS treats all H-1Bs that are filed April 2-6 as if they were filed on the first day of H-1B season.

The H-1B cap will surely be oversubscribed next year. When the H-1B cap is oversubscribed, the USCIS holds an H-1B lottery, which is what they did this past April.  In April 2017, 42% of H-1Bs that were filed on April 1 “won” the H-1B lottery and 58% lost the H-1B lottery. 

This year we are expecting that fewer H-1Bs will be filed than in 2017.  It would not surprise us if the H-1B lottery winners exceed the number of H-1B lottery losers.

A variety of types of case are subject to H-1B cap:
  • International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
  • International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
  • Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
  • Prospective international employees currently living abroad.

These types of case are not subject to H-1B cap:
  • H-1B amendments/extensions/transfers
  • When the employee has been in H-1B status for less than 6 years
  • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
  • Institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.
Please contact us if you have any questions or are looking for representation in filing H-1B cap petitions.

Monday, January 29, 2018

H-1 CAP 2018: USCIS UPDATE

The American Immigration Lawyers Association recently confirmed with the USICS Service Center Operations Directorate that the USCIS is not anticipating any procedural changes to the H-1B cap for the coming April 2018 filing season.  The USCIS confirmed they intend to follow the same procedure using for April 2017 filings this year and will not require any type of pre-registration for H-1Bs filings.

In addition, the USCIS confirmed that they do not anticipate premium processing will be suspended for non-cap H-1B petitions, including H-1B transfers, amendments, or extensions.  However, there may be a brief moratorium on premium processing for H-1B cap petitions filed in April 2018.

Musillo Unkenholt is hosting an H-1B Cap Webinar on January 31.  We will be discussing a variety of immigration issues, including present and forthcoming Trump administration policy changes. 

Tuesday, January 23, 2018

EXPECTED FORTHCOMING VISA BULLETIN AVAILABILITY

The DOS recently released its expected availability for the next several months.  Those dates are:

EMPLOYMENT-based categories (potential monthly movement)
Employment First: The category will remain “Current” for all countries for the next several months.
Employment Second: Worldwide: Current China: Several months India: Up to two weeks Employment
Third: Worldwide: Current China: Up to five months India: One to three months Mexico: Current Philippines: Up to one month

As we have previously mentioned, we believe that these projections may underestimate the progression of Consular Processed cases because the new I-485 interview-requirements may slow I-485 processing times.  If I-485 processing times do slow, these visas will not go unused. Instead, they will flow into the Consular Processed cases.  There will be no announcement of this phenomenon, it will just happen as a matter of legal process. 

Tuesday, January 16, 2018

VISA BULLETIN FEBRUARY 2018: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2018 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

February 2018 Visa Bulletin

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

EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL'PNES    
EB-1
C
C
C
C
EB-2
C
01OCT13
08DEC08 
C
C
EB-3
15SEP14
01DEC06 

01MAR16       


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  Both China EB-2 and EB-3 favorably progressed.  EB-2 improved by two months; EB-3 improved by five months.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.

India:  Both India EB-2 and EB-3 progressed.  EB-2 by 2 weeks and EB-3 by 4 weeks, which is about what we expect that the monthly progressions will be in FY 2018.  MU suspects that EB-3 will not progress at any notable rate until at least the India EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date moved two weeks, which is its average in FY2018. Because of increased demand will expect slower progressions in the FY2018, progressing no more than 1-2 months per Visa Bulletin, unless I-485 processing times.  I-485 processing times may slow because of the new I-485 EB interview requirement.  If EB I-485 interview times slow, it will cause the DOS to free up more visas for Consular Processing petitions.

Tuesday, January 9, 2018

TRUMP BACKS DOWN ON AN H-1B THREAT TO 6+ YEAR H-1Bs

McClatchy reports that the Trump Administration has backed down from a threat that would have eliminated the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years.  They had previously reported that the Trump Administration was considering the change to H-1B extensions.

In a recent MU Law blog, we outlined the reasons that such a policy change was contrary to law.  We explained that The Trump Administration would have lost if challenged in court.  While Section 104 of AC21 might provide arguable cover for a Trump policy change, Section 106 of AC21 could not have been changed.  Therefore any policy change to Section 104 would have simply resulted in USCIS granting H-1B extensions in one-year increments under Section 106.

McClatchy quotes an unnamed USCIS official who confirms our analysis and the analysis of many members of the business immigration bar:

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

Thursday, January 4, 2018

WILL TRUMP ATTEMPT TO STRIKE DOWN 6+ YEAR H-1Bs ?

In what would be a direct attack against Indian H-1B workers, McClatchy reports that the Trump administration is considering an Executive Order or Memorandum that would eliminate the ability of H-1B workers with long-pending green card cases to extend their H-1B status beyond 6 years.  For the reasons outlined in this blog, MU Law believes that while the Trump Administration may attempt this change in interpretation, they would be unsuccessful once challenged in court. 

Background

In the 1990s H-1B status was limited to 6 years.  After 6 years the H-1B worker had to exit the US, even if the H-1B worker's green card application was being delayed for reasons outside of their control, i.e. retrogression or processing delayed at INS (the predecessor to the USCIS).  Congress recognized this problem and solved it with the American Competitiveness in the 21st Century Act (AC21). 

AC21 includes two provisions that allow H-1B extensions beyond 6 years.  These provisions, Sections 104 and 106, are only available to H-1B workers who have started the green card process.  The sole purpose of these two provisions is to allow H-1B workers to extend their H-1B beyond 6 years.

Section 104 says that the Attorney General (now Secretary of the Department of Homeland Security) “may” extend an H-1B worker’s status beyond 6 years if the H-1B worker is the Beneficiary of an I-140 petition.  The USCIS can approve these extensions in increments of no more than 3 years.

The other important provision, Section 106, says that the USCIS “shall” issue one-year H-1B extensions to H-1B workers who are either:

(1)    the Beneficiary of a PERM application that was filed more than 1 year earlier; or
(2)    the Beneficiary of an I-140 petition that was filed more than 1 year earlier.

Again, the entire purpose of Sections 104 and 106 is to allow H-1B workers to extend their H-1B beyond 6 years.

Current Regulations

In January 2017, the USCIS released regulations further clarifying the applicability of Section 106.  These regulations clearly state that there are only four ways that the USCIS may not extend a 6+ year H-1B. None of the four exception criteria will apply to any H-1B holder with an approved I-140.

(2) H-1B [extensions beyond 6 years] may be granted in up to 1-year increments until either the approved permanent labor certification expires or a final decision has been made to:
    (i) Deny the application for permanent labor certification, or, if approved, to revoke or invalidate such approval;
    (ii) Deny the immigrant visa petition, or, if approved, revoke such approval;
    (iii) Deny or approve the alien's application for an immigrant visa or application to adjust status to lawful permanent residence; or
    (iv) Administratively or otherwise close the application for permanent labor certification, immigrant visa petition, or application to adjust status.

Mistaken Interpretation of Sections 104 and 106

The McClatchy article and several other blogs and news stories point to the “may” language in Section 104.  Their interpretation is that the “may” language gives the DHS Secretary unqualified discretion to deny 6+ year H-1Bs. 

While MU Law believes that this is a wrong interpretation of Section 104, and we will explain why in a future blog post, it is irrelevant because Section 106 provides no such discretion to the DHS Secretary. 

Simply put, under Section 106 the USCIS “shall” issue on-year H-1B extensions. 

Some have mistakenly interpreted AC21.  The mistaken interpretation says that Section 106 does not apply if H-1B workers have an approved I-140.  This interpretation is wrong.  There is no qualifying clause that compels USCIS to only adjudicate green card petitions under Section 104.  

Some have pointed to the "surplusage canon" for the authority that Section 104 supersedes Section 106 when an H-1B worker has an approved I-140.  The surplusage canon is a doctrine of statutory interpretation that says that if one clause in a state makes the other redundant, courts should use a reading to eliminate the redundancy.  

This interpretation is wrong for several reasons, but the primary one is that an interpretation where Section 104 supersedes 106, makes Section 106 essential.  
In other words, Beneficiaries have two ways to qualify: either Section 104 or Section 106.  There is no "surplusage".


Conclusion

MU Law wants to be clear.  There is risk here.  The Trump Administration has proven to be willing to issue unlawful executive orders.  They may attempt to issue an unlawful executive order in this instance.

Having said that, a federal court challenge would almost surely be successful because of the alternative nature of Sections 104 and 106.

Latest news: highly-regarded immigration attorney Greg Siskind has just reported on Twitter that he believes that the Trump administration is only considering changing their interpretation of Section 104.  Section 106 appears to be outside the scope of the Trump Administration’s considered review.