JULY 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

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

July 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	01JAN12	01JAN12	C	C
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JAN13	01NOV08	C	01JAN17

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	01JAN12	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

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):  As often happens as we get closer to the end of the fiscal year, each categories moves with a higher variance than is usual.  We expect that China EB-1 and EB-3 are essentially fully used, which means that there will be no numbers until after October 1, 2018.  On the other hand, the China EB-2 number progressed about 6 months, reflecting than "downgrade" demand that has occurred in the last several years. 

India:  As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018.  EB-2 and EB-3 continued their steady progress.  Rumors are flying around the internet about a massive progression of EB-3.  We expect steady progressions for Indian EB-3, reflecting lower demand for these visas in 2008-09.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same.  As with China EB-1 and EB-3, and India EB-1, this probably means no forward progression until October 1, 2018, when the new fiscal year begins.  There is a minimal chance of a small progression in the next few months.

DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?

Thank goodness the answer is NO.  Green cards are still viable for roving employees and for staffing company employees.

Nevertheless, the rumor that the DOL has “cancelled” the long-standing Farmer Memo has been flying around the internet.  A cancellation of the Farmer Memo could be seen a massive strike against the viability of “roving employee” green cards, which make up the bulk of IT and healthcare staffing company’s green cards. 

Thankfully, AILA has confirmed that the rumor is false.  The Farmer Memo is still good guidance for PERM green cards.  The recent "cancellation" notification of the Farmer Memo that appeared on the DOL website is “simply an administrative system update that does not reflect any policy change.”

The Farmer Memo, which has existed since 1994, provides the basis for green cards where the employer does not know where the employee will actually work, as is the case for most staffing companies.  The Farmer Memo instructs staffing company petitioners to use the employer’s headquarters as the “worksite”.  The Memo has been cited by the DOL countless times as good law, notably in Matter of Amsol.

Relevant section of the Farmer Memo

10. LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUS UNANTICIPATED SITES Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.

In Item 7 (address where alien will work) of part A of the Application for Alien Employment Certification, the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S. A short statement should also be included explaining why it is not possible to predict where the work sites will be at the time the application is filed.

No Impact on Schedule A cases

Even if the Farmer Memo had been cancelled, Schedule A cases would not have been impacted.  Schedule A cases are green card petitions for Nurses and Physical Therapists.  The DOL’s PERM FAQ website still contains this FAQ (Notice of Filing FAQ #12), which allows roving employees and provides guidance on how to prepare Schedule A green card petitions.

12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.

DINNER AT AILA ANNUAL

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 people.  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.  The deadline to register is June 1. Friends, spouses, etc. are also welcome.

USCIS FINISHES H-1B LOTTERY

The H-1B lottery has been completed.  USCIS has finished the data entry for all FY 2019 H-1B cap-subject petitions.  Musillo Unkenholt continues to see H-1B checks being cashed and continues to receive H-1B receipt notices in our mail.  Therefore H-1B cap-subject petitioners should not lose hope yet if they have not received an H-1B receipt notice.  We expected that we will continue to see H-1B receipts for the next two weeks.

After the final H-1B receipt notices are sent by USCIS, they will begin returning all H-1B cap-subject petitions that were not selected.  In past years it has taken USCIS 1-2 months to complete this process.  Musillo Unkenholt does not expect the final H-1B returns until late June or early July.

TWO MAJOR CHANGES FOR F-1 STUDENTS

USCIS has recently issued two updates that impact F-1 students. 

Unlawful Presence

On May 11, 2018, the USCIS issued a policy memorandum that changed the rules regarding unlawful presence for F-1 students.  Unlawful presence begins to accrue once a foreign national has stayed beyond the end date on his/her I-94 card.  Because F-1 I-94 cards do not have an end date, but show D/S (duration of status) as the term of stay, unlawful presence did not apply to F-1s. 

As of August 8, 2018, individuals in F, J, and M status who fail to maintain their status will start accruing unlawful presence on or after the date of one of the following events:

• The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while adjudicating the benefit request;
• The day after the student’s I-94 expires; 
• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), orders the student excluded, deported, or removed; 
• The day after the student no longer pursues a course of study or authorized activity, or the day after the student engages in unauthorized activity (e.g. unauthorized employment); or
• The day after the student completes his/her course of study or program, including any authorized CPT or OPT plus any authorized grace period.

Individuals who have accrued more than 180 days of unlawful presence are generally subject to a 3 year bar of re-entry to the US.  Individuals who accrue more than 365 days of unlawful presence are generally subject to a 10 year bar of re-entry to the US.

STEM OPT   

In April 2018, USCIS updated its website regarding STEM OPT extensions to indicate students are not permitted to engage in STEM OPT at third party worksite locations.  No formal policy memo or update was announced regarding this change. 

The 2016 STEM OPT Rule requires only that the student be a bona fide employee of the employer signing the I-983 training plan.  The I-983 does require that the student “receive on-site supervision and training” but does not specify if the employer must provide this supervision. 

This issue has been raised with DHS and members of Congress through industry groups and the American Immigration Lawyers Association and is currently under review.

JUNE 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

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

June 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	01JAN12	01JAN12	C	C
EB-2	C	01SEP14	26DEC08	C	C
EB-3	C	01JUN15	01MAY08	C	01JAN17

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	C
EB-2	C	01FEB15	01APR09	C	C
EB-3	C	01JAN16	01SEP08	C	01JUL17

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):  As with all categories this month, the movements were nonexistent.  It would not surprise MU if the Chinese numbers did not move for the remainder of the fiscal year.  China EB-2 is a better bet to progress than EB-3, although it remains doubtful that EB-2 progresses ahead of EB-3.

India:  There is a similar story with India as with China.  No progress, outside of a minor 4 day movement in EB-3.  We would not be surprised to see minor movements in these categories before the end of the fiscal year.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same, which is not surprising considering the enormous progressions of the last few years. The Phils EB-3 number will probably continue to only move negligible, reflecting the large numbers of Philippine RN EB-3 petitions that were filed in 2016-2018.  There is a chance of a small progression in the next few VBs.

H-1B EMPLOYERS SUE USCIS TO STOP HARASSING EMPLOYER-EMPLOYEE RFEs

On May 1 a significant lawsuit was filed in federal court in New Jersey.  The Plaintiffs, three IT consulting companies, seek to overturn some of the most harassing parts of the USCIS’ policy against H-1Bs.

The legal issue is simple: USCIS is only allowed to enforce laws that are passed by Congress.  USCIS is not allowed to create laws.  The lawsuit alleges that the USCIS’ policy of seeking third-party contracts, vendor letters, itineraries, and endless details over employer-employee relationships are all outside USCIS’ authority.

Jon Wasden is the attorney who filed the case.  Jon worked at USCIS's Administrative Appeals Office and the Justice Department and has substantial experience in these issues. 

If your H-1B has been denied for these reasons, please let me know and I can put you in touch with Jon or you can visit his website.

DHS DIR. CISSNA CONTINUES THE ASSAULT ON H-1Bs

Earlier this month, USCIS Director Francis Cissna, in a letter to Sen. Grassley (R-IA), described a number of forthcoming policies aimed at restricting the H-1B.  Dir. Cissna’s policy changes hide behind fraud concerns.  The real target is reducing legal immigration.

The new restrictions that USCIS plans to unilaterally impose include:

• Rewrite the definition of “Specialty Occupation”.  USCIS will rewrite the definition of specialty occupation.  Under the current “bottom-up” approach, US employers decide who comes to America.  The agency’s “big government” rewrite will create more regulation, more USCIS officer discretion, and less accountability for USCIS officers.  These policies are being produced because the administration thinks that it knows who are the “best and brightest,” instead of the marketplace.

• Denying spouses from Working In The United States:  USCIS’ long-rumored plan to eliminate H-4 EADs was announced in the USCIS’ semiannual regulatory agenda.

• Ratcheting up third-party worksite H-1B denials.  Despite no objective evidence that fraud exists in third-party staffing situations, USCIS seeks to ask for additional evidence that it does not ask for in first-party worksite assignments.  This issue seems ripe for litigation. It seems inevitable that an H-1B employer will successfully challenge the Service’s overreaching requests in this area.

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:

Categories in which final action dates will remain the same include-

EB-1 China and India;

EB-2 India;

EB-3 China and Philippines;

EB-4 El Salvador, Guatemala and Honduras, and

EB-5 China.

Categories with modest advancements-

EB-2 China will move forward one month to September 1, 2014;

EB-3 India will advance three months to May 1, 2008;

EB-3 Other Workers China and India will advance one and three months respectively, to May 1, 2007 and May 1, 2008; and

EB-4 Mexico will advance roughly five weeks to October 22, 2016.

It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July. What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS. The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

USCIS RECEIVES 190,000 H-1B CAP PETITIONS

USCIS announced that it received 190,098 petitions during the filing period, including petitions filed for the advanced degree exemption (compared to the 199,000 H-1B petitions received during the FY2018 filing period).

USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 44% of their H-1B cap filings to be H-1B cap winners.  Based on prior years, we will receive H-1B lottery winner receipts throughout April and May.  After that we will receive the H-1B lottery loser petitions.  Traditionally if you do not receive a winner receipt notice by June 1, you have probably lost the H-1B lottery.

MAY 2018 VISA BULLETIN: NEWS AND ANALYSIS

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

May 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	01JAN12	01JAN12	C	C
EB-2	C	01SEP14	22DEC08	C	C
EB-3	C	01JUN15	01MAY08	C	01JAN17

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	C
EB-2	C	01FEB15	01APR09	C	C
EB-3	C	01JAN16	01SEP08	C	01JUL17

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):  As with all categories this month, the movements were minor or nonexistent.  It would not surprise MU if the Chinese numbers stayed steady through the fiscal year.  China EB-2 is a better bet to progress than EB-3, although it remains doubtful that EB-2 progresses ahead of EB-3.

India:  India EB-3 had the most promising move of all EB categories, progressing from February to May 2008, which marks two consecutive months of great progress.  This likely reflects the fact that many older Indian EB-3s have either dropped out of the system or have upgraded to EB-2.  For a long time, MU Law has believed that India EB-3 would move much faster, once India EB-3 moved past 2007.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed steady, which is not surprising considering the enormous progressions of the last few years. The Phils EB-3 number will probably continue to only move slowly, reflecting the large numbers of Philippine RN EB-3 petitions that were filed in 2016-2018.