CGFNS MUST ISSUE CERTIFIED STATEMENTS TO US-EDUCATED BSNs

CGFNS has a fast-track “Certified Statement” Visa Screen for foreign nurses who are educated in the US, and a few other English speaking countries (see below). 

Franklin University, an Ohio college, offers graduate nursing degree, such as Bachelors of Science in Nursing (BSN) to foreign nurses who received a 2 year degree in other countries, such as the Philippines.  CGFNS was trying to force these BSNs to file for the more expensive and time consuming regular Visa Screen, instead of the Certified Statement.  

Franklin University tried to convince CGFNS that making these nurses apply for the costlier and time-consuming process was contrary to the relevant USCIS’ regulation.  When CGFNS refused to allow these nurses to apply for the Certified Statement, Franklin University sued.  This week, the court held that CGFNS must issue Certified Statements to these US-graduates of BSNs. 

The countries are:  Australia, Barbados, Canada (including only the following approved Quebec schools: McGill University and Dawson College in Montreal, Vanier College in St Laurent, John Abbot College in Sainte-Anne-de-Bellevue, and Heritage College in Gatineau), Ireland, Jamaica, New Zealand, South Africa, Trinidad/Tobago, the United Kingdom (England, Northern Ireland, Scotland and Wales) 

PRESIDENTIAL PROCLAMATION BARRING NONIMMIGRANTS NOW EXPIRED

On March 31, 2021, Presidential Proclamation 10052 expired. PP 10052 prohibited the issuance of certain H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US at US Embassies and Consulates due to possible economic harm to the US during the COVID-19 Pandemic.

All consular processed cases falling under the criteria of PP 10052 may now resume processing. Any visa applicant previously refused a visa due to PP 10052 must reapply with a new application and new fee. However, many US embassies are still operating on reduced staff, due to the COVID-19 pandemic. Therefore, we anticipate that there will continue to be delays in obtaining nonimmigrant visa interviews at Embassies and Consulates.

DOS has updated its announcement and FAQs on the phased resumption of visa services  following the expiration of Presidential Proclamation 10052.

HEALTHCARE WORKFORCE RESILIENCE ACT REINTRODUCED INTO CONGRESS

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act has been reintroduced into Congress.  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 before 90 days after the expiration of the President’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. Durbin, Coons, Lehay (Ds) and Cornyn, Young, Collins (Rs). This is an impressive bipartisan set of Senators with decades of experience leading legislative initiatives.  Companion legislation will be introduced into the House by U.S. Representatives Brad Schneider (D-IL-10), Tom Cole (R-OK-04), Tom O'Halleran (D-AZ-01), and Don Bacon (R-NE-02). 

Specifically, the Healthcare Workforce Resilience Act:

* Recaptures unused visas from previous fiscal years for doctors, nurses, and their families

* Exempts these visas from country caps

* Requires employers to attest that immigrants from overseas who receive these visas will not displace an American worker

* Requires the Department of Homeland Security and State Department to expedite the processing of recaptured visas

* Limits the filing period for recaptured visas to 90 days following the termination of the President’s COVID-19 emergency declaration

IMPLEMENTATION OF DOL RULE INCREASING PREVAILING WAGES DELAYED

The US Department of Labor (DOL) has delayed the new rule which would change the method for calculating prevailing wages for 18 months. 

In October 2020, the DOL announced an Interim Rule which changed the computation of wage levels and dramatically increased prevailing wages.  The October 2020 Interim Rule was later struck down by the courts, but was later re-issued as a Final Rule in January 2021. 

On January 14, 2021 the DOL published its Final Rule regarding increases in prevailing wages for H-1B, H-1B1, E-3, and Green Card cases. You can find our blog post summarizing the Final Rule here.  

The Final Rule was initially set to take effect May 14, 2021 and wages issued after July 1, 2021 would be impacted. However, the DOL has postponed the effective date of the Final Rule by 18 months until November 14, 2022. The DOL delayed the start of the transition period to the new prevailing wage levels from July 1, 2021 to January 1, 2023. 

The DOL is implementing this delay to allow for more time to fully analyze the legal and policy issues raised by the rule, as well as to validate the prevailing wage data. This official delay is expected to be effective on March 22, 2021.

APRIL 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the April 2020 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

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	C	C	C
2nd	C	01SEP16	01MAY10	C
3rd	C	15MAR18	01SEP10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.  USCIS Adjustment of Status page.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 became current, which led to extra visas will flowing down to India EB2 and EB3.  Indeed, India EB-2 moved ahead almost a year and half into May 2011.  EB-3 also jumped up. It is now is 2014.  We could see favorable processing times for the rest of 2021.

China EB-2 and EB-3 again both moved forward, this time by months, a trend that should continue.  China EB-1 is now current reflecting the paucity of visas that were issued under the last year of the Trump presidency. 

PUBLIC CHARGE RULE RESCINDED

USCIS announced on March 9 that it will no longer apply the Public Charge Final Rule.  The Public Charge Final Rule was published in October 2019 and subjected all I-485 applicants to a wealth test, requiring applicants to list and document all assets and debts on Form I-944.  Effective March 9, I-485 applicants no longer need to submit Form I-944.  

USCIS will not review any I-944 forms already submitted, and applicants can disregard any aspect of a Request for Evidence of Notice of Intent to Deny that requests information related to the Public Charge Final Rule.  

The Public Charge Final Rule had also required nonimmigrant visa applicants to answer questions about the receipt of public benefits on applications for extension of stay or change of status.  Nonimmigrant visa applicants now no longer need to answer these questions relating to the receipt of public benefits.  

USCIS will revert to the prior guidance outlined in the 1999 Interim Field Guidance in place prior to the introduction of the Public Charge Final Rule.  

H-1B REGISTRATION WINDOW

Beginning March 2, 2021, H-1B Electronic Registration for cap-subject petitions will take place. While this marks the second year that USCIS has utilized electronic registration, the process remains much the same as last year. 

Employers that did not participate in last year’s electronic registration process will need to first create an H-1B Registrant account on MyUSCIS.  Employers that did participate last year will be able to utilize their existing account.  

The registration window will open at 12:00pm Eastern Time on March 9, 2021 and end at 12:00pm Eastern Time on March 25, 2021. During this window, all potential beneficiaries must be registered by their employer to be considered for H-1B selection in the cap.  

USCIS intends to inform employers by March 31, 2021 which beneficiaries were selected and full H-1B petitions may be filed no earlier than April 1, 2021. While the registration process only requires minimal information about each beneficiary, the beneficiary must meet all eligibility requirements at the time of filing the full H-1B petition. 

Please contact MU Law should you have any questions or require any assistance in filing H-1B cap-subject registrations.

PRESIDENT BIDEN RESCINDS PRESIDENTIAL PROCLAMATION PROHIBITING ENTRY OF IMMIGRANTS DUE TO COVID-19 PANDEMIC

On February 24, 2021, President Biden rescinded Presidential Proclamation 10014. PP 10014 prohibited the issuance of most immigrant visas (green cards) at US Embassies and Consulates due to possible economic harm to the US during the COVID-19 Pandemic.

All consular processed green card cases put on hold due to PP 10014 will now resume processing. However, many US embassies are still operating on reduced staff, due to the COVID-19 pandemic. Therefore, we anticipate that there will continue to be delays in obtaining green card interviews at Embassies and Consulates.

Although PP 10014 has been rescinded, Presidential Proclamation 10052 (PP 10052) suspending the entry of nonimmigrant workers due to the COVID-19 Pandemic remains in place. Specifically, PP 10052 applies to applicants applying for H-1B, H-2B, L-1, J-1, H-4, L-2, and J-2 visas for entry to the US.

In addition, the Department of State (DOS) updated its guidance related to National Interest Exemptions for individuals subject to PP 10052. The eligibility requirements have not changed, but the DOS has provided further details of which nonimmigrant visa applicants can qualify for National Interest Exemptions. PP 10052 is currently set to expire on March 31, 2021.

MARCH 2021 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2020 Visa Bulletin. This is the sixth Visa Bulletin of Fiscal Year 2021. This blog post analyzes this month's Visa Bulletin.

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	01AUG20	01AUG20	C
2nd	C	15JUL16	15JAN10	C
3rd	C	08FEB18	01JUL10	C

  

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current. Our opinion remains that these categories will stay current for the foreseeable future.

India EB-1 moved ahead 7 more months, which is about a year since December. India EB-2 and EB-3 each showed more progress than usual, but the progress is still underwhelming.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that we should only expect 1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that should continue. China EB-1 again showed more progress than expected moving ahead seven months.  This may be because of declining rates of visa issuance out of the American posts in China.

  

REMINDER: H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

H-1B CAP: LOTTERY AND REGISTRATION UPDATES

MU Law will be hosting a free webinar for our clients and friends on Tuesday, February 16, 2021 at 2PM Eastern (1PM Central). Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Join us for this FREE webinar to learn more about:

-      The H-1B CAP timeline for registration submissions

-      The H-1B Wage-Based Lottery Selection Rule now *canceled*

-      Recap of DOL Wage Rule and promo Alternative Wage Surveys

-      The H-1B Rule Requiring End-Clients to file LCAs or H-1Bs now *canceled*

 

PLEASE JOIN US! 

USCIS Delays Wage-Based H-1B Lottery until 2022

In January 2021, the USCIS issued a final rule that would replace the random H-1B cap lottery with a wage-based H-1B selection process. This January 2021 rule was set to go into effect on March 9, 2021 and would apply to the upcoming H-1B cap season (filed in April 2021 for Fiscal Year 2022). However, the USCIS has delayed implementing this rule until December 31, 2021. This means that for the H-1B cap lottery in April 2021, even if there are multiple lottery drawings, none of the drawings will be done under the wage-based selection process.  All lottery drawings in 2021 will be random.  

The new wage-based selection process would select the H-1Bs filed at the highest OES prevailing wage level, starting with Level IV, for the job classification and location of employment.  If there are more than 85,000 Level IV H-1B petitions filed, then the USCIS would hold a lottery just for the Level IV wage petitions.  If there are fewer than 85,000 level IV wage petitions, then the USCIS would run a lottery of the Level III wage petitions for the remaining H-1B spots available. The wage-based selection process then continues for Level II and I, until 85,000 petitions have been selected. 

The USCIS announced February 4, 2021 that the USCIS will delay implementing the wage-based selection process because the USCIS does not have adequate time to develop and test the new wage-based selection process for the 2021 H-1B lottery.  At present, the USCIS plans to have the rule implemented for the H-1B cap season in April 2022 (Fiscal Year 2023).

PRESIDENT BIDEN PROPOSED US CITIZENSHIP ACT OF 2021

 President Biden has announced the US Citizenship Act of 2021, an immigration plan that could impact many immigration laws.  At this time, President Biden’s plan is not law, but only a proposal.  Although President Biden has promised many changes to immigration laws, these changes will take time to be implemented. 

Once President Biden’s plan is introduced into Congress, either in the House of Representatives or the Senate, as a bill, the bill must successfully pass three steps before it becomes a law:

1. Pass the House of Representatives and the Senate. The bill must be voted for by a majority of the members of the House of Representatives (the House) and the Senate.

2.Conference Committee. If the House and the Senate pass different versions of the bill, the bill must be amended so that there is only one version of the bill. Once the bill has been amended, both the House and Senate must again pass the bill.

3. Be signed by the President. Once a bill is signed by the President, the bill  becomes a law.

As of today, the US Citizenship Act of 2021 introduced by President Biden is still only a plan and must be introduced to Congress as a bill and successfully pass these three steps before it becomes a law. 

FEBRUARY 2021 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 2021. This blog post analyzes this month's Visa Bulletin.

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	01JAN20	01JAN20	C
2nd	C	15JUN16	12OCT09	C
3rd	C	01JAN18	01APR10	C

 

Table B: Dates of Filing

The USCIS will be using the Table A: Final Action Dates chart for I-485 employment-based filings. A beneficiary must be current on the above Table A chart in order to file their I-485, Adjustment of Status applications.

MU Law Analysis

Both the Philippines and Worldwide (All Other) EB-3 continue to be current.  Our opinion remains that these categories will stay current for the foreseeable future.  This month’s Visa Bulletin included a note confirming that these categories will stay current at least through May, which is the furthest projection that the DOS will make, i.e. 3 months into the future.

India EB-1 moved ahead 3.5 more months, after six months in December and five months in January. Unfortunately, India EB-2 and EB-3 each moved ahead by only about two weeks.  These slow progressions, along with the large number of India EB-2 and EB-3 filings in October, November, and December, probably means that we should only expect 1-4 week movements in India EB-2 or EB-3 for at least the rest of 2021.  This month’s Visa Bulletin included a note confirming that the EB-2 and EB-3 categories should move two weeks on average through the May Visa Bulletin.

China EB-2 and EB-3 again both moved forward by a few weeks, a trend that should continue. China EB-1 showed more progress than expected, perhaps because of declining rates of visa issuance out of the American posts in China.  This month’s Visa Bulletin included a note that says that EB-2 and EB-3 should move 2-3 weeks on average through the May Visa Bulletin.

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US! 

DOL DRAMATICALLY RAISES PREVAILING WAGES

DOL DRAMATICALLY RAISES PREVAILING WAGES

On January 14, 2021 the US Department of Labor (DOL) published its Final Rule regarding the calculation of prevailing wages.  Readers of our blog will note that the DOL previously issued an Interim Rule about calculation of prevailing wages which was struck down by Federal Judges late last year.  The Final Rule published on January 14, 2021 is the updated version of the Interim Rule.

 

Summary of the Final Rule

The Final Rule will dramatically change the calculation of prevailing wage levels resulting in significantly higher prevailing wages.  While the new percentiles are lower than the October 2020 Interim Rule’s percentiles, the new percentiles are still considerably higher than the current percentiles. 

 

Wage Level	Current Percentile	October 2020 Interim Rule Percentile	January 2021 Final Rule Percentile
1	17	45	35
2	34	62	53
3	50	78	72
4	67	95	90

 

The Final Rule applies to prevailing wages applicable to applications for H-1Bs, H-1B1s, E-3s, and Green Cards.

 

Transition Periods

The Final Rule attempts to provide employers and foreign nationals an opportunity to adapt to the change in calculations.  For those who did not have an I-140 approval in hand as of October 8, 2020, the transition will occur over an eighteen-month period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 100% of the Final Rule percentile

For those who did have an I-140 approval in hand as of October 8, 2020, and so are applying for a post-six year H-1B extension, the transition will occur over an three and a half year period:

• Stage One, Present to June 30, 2021: Current Percentiles remain in effect
• Stage Two, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
• Stage Three, July 1, 2022 and Beyond: 90% of the Final Rule percentile
• Stage Four, July 1, 2023 and Beyond: 95% of the Final Rule percentile
• Stage Five, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-Elect Biden’s transition team will issue an immediate 60-day delay to the implementation of this and other last-minute regulations promulgated by the Trump presidency, but how the Biden Administration will move forward remains unknown.

 

Alternative Wage Surveys

Alternative Wage Surveys may be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule and its implications for their employees may want to consider using an Alternative Wage Survey in place of the DOL’s wage survey.  For more information about which wage surveys may be accepted by the DOL, please contact your MU attorney. 

A LOOK BACK, AND A LOOK AHEAD

Join is for a review of some of the immigration changes that took place in 2020 and a look forward to the changes coming in 2021, specifically for the H-1B cap. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

MU Law will be hosting a free webinar for our clients and friends on Tuesday, January 26, 2021 at 2PM Eastern (1PM Central).

Join us for this FREE webinar to learn more about:

• H-1B Cap Basics, Registration Process, and Projections
• NEW RULE: H-1B lottery system, selection by wage
• NEW RULE: DOL Rule Regarding Calculation of Prevailing Wage
• H-1B Specialty Occupation
• H-1B Dependency
• H-1B issues for Staffing Companies and Third-Party Placement
• Third- Party Placement v. In-House work?
• Employer-Employee Relationships
• Cap-Gap for F-1s
• CPT / OPT Maintenance
• Top 10 things H-1B employers can do to stay compliant

PLEASE JOIN US!

USCIS TO REPLACE H-1B LOTTERY: ONLY H-1s WITH THE GREATEST WAGES WILL BE SELECTED

USCIS has issued a final rule that will replace the H-1B cap lottery with a wage-based selection process.  The new process selects the highest OES prevailing wage level, starting with Level IV.  If there are more than 85,000 petitions filed with a Level IV wage, then the USCIS will hold a lottery just for the Level IV petitions.  If there are fewer than 85,000 that are filed with a Level IV wage, then the USCIS will take all petitions that are filed with Level III wage.  The process then continues for Level II and I, until the full allotment of 85,000 have been selected.  USCIS reserves 20,000 of the 85,000 H-1B slots for master degreed holders from US universities. 

The rule will take effect in 60 days, in time for the March 2021 H-1B cap season.  The incoming Biden could theoretically place the regulation on hold. The rule could also be challenged in court.   

Because we will not know in advance how many will be petitioned under Level IV, III, II, or I, it is impossible to know what wage level will guarantee a chance at an H-1B slot, although a petition filed with a Level IV wage should have a good chance of success. 

Another complicating factor is that it is very difficult to assess how COVID and/or the economy will affect the volume of H-1B cap petitions that will be filed this year.  The USCIS received over 250,000 H-1B cap petitions in both 2019 and 2020.