TWO PROPOSED H-1B CAP MODIFICATIONS

The USCIS has published two proposed rules that will change H-1B cap processes.  While the USCIS hopes that these two rules are finalized in time for the April 2019 H-1B cap, the USCIS has not yet committed to a timeline.  The public may comment on the two proposed rules until January 2, 2019.

The two rules are:

1. Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2. H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

Effective Monday, November 19, 2018, the DOL released a new LCA (Form ETA-9035) which must be used on all immigration filings going forward. A certified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status.  The DOL generally certifies an LCA approximately 7-10 days after submission of the LCA to the DOL.    

Certified and date-valid LCAs in the old format can still be used in immigration filings, provided the LCAs have unused slots in the appropriate filing category, e.g. new employment, continuation of employment without change, etc. 

For all immigration filings, the new LCA requires the legal business name of the end-client(s) as well as the street address of the worksite(s) where the employee will physically work.

For H-1B masters cap petitions, the new LCA requires:

o   The name of the institution that awarded the employee’s master’s degree;

o   The field of study in which the employee’s master’s degree was awarded;

o   The date on which the employee’s master’s degree was awarded; and

o   Documentation substantiating the employee’s master’s degree information.

MU’s employer checklists for H-1B, H-1B1, and E-3 filings have been updated to request this information from employers at case initiation. 

DECEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the December 2018 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

December 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	PHIL'PNES
EB-1	01JUL17	01SEP16	01SEP16	01JUL17
EB-2	C	01JUL15	01APR09	C
EB-3	C	08JUN15	01MAR09	15JUN17

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	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01DEC15	01JAN10	01AUG17

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

All Other, Mexico: As we expected, the EB-1 category moved several months. We expect continued steady movement in this category for All Other.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins. China EB-2 moved two months, although EB-3 only advanced one week. We expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: The Indian EB-3 date moved two months, which was more than expected. There is a chance that EB-3 continues to move at this pace for the next few Visa Bulletins. We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.

Philippines: The EB-3 date again also only moved up by week, which is slower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, we do not expect too much movement in the next few Visa Bulletins.

USCIS ANNOUNCES THE TERMINATION OF SELF-SCHEDULED INFOPASS APPOINTMENTS

In 2019, the USCIS plans to expand its Information Services Modernization Program throughout the US. This expansion will end self-scheduled InfoPass appointments and instead applicants will use the USCIS website to view general how-to information, access processing times, check case status, and other information about the processing of immigration cases.

The USCIS states that the transition to the Information Services Modernization Program has already improved the delivery of emergency services which can only be provided in person. USCIS surveys and data determined that most people scheduling InfoPass appointments could obtain the same information by calling the USCIS or checking the USCIS website. 

Going forward, when the USCIS customer service representative online or on the phone determines an in-person appointment is necessary, the customer service representative will schedule the appointment for the applicant.  

USCIS MAY IMPROVE US MASTERS CHANCES AT H-1B LOTTERY

Bloomberg reports that USCIS is considering a proposal that will slightly improve the chances of US Master Degree holders to win the H-1B lottery.  If the proposed change had been in effect in April 2018 numbers, about 2,700 more US Masters degree holders would have won the lottery, at the expense of 2,700 regular H-1B cap winners (non-US Master’s degree).  USCIS selects 85,000 H-1B cap lottery winners each April.

USCIS has signaled that it wants to reorder the way that it runs the lottery.  Under the present lottery program, the USCIS segregates all of the H-1B beneficiaries who hold Masters degrees and runs a “Masters-only” lottery.  It then takes all of the Masters lottery-losers, combines them with the regular H-1B beneficiaries and runs the regular-cap lottery.

The proposal calls for the USCIS to reverse the process.  The USCIS would run the regular lottery first.  The regular lottery would include both regular cap petitions and Master’s degree holders.  Then, USCIS would take all Masters degree losers and run a Masters lottery.  As shown in the 2018 example, the result would be that slightly more Masters degree holders would win the lottery at the expense of slightly fewer non-Masters cap beneficiaries.

REMINDER: USCIS POLICY MEMOS WEBINAR NOV. 7

As a reminder, MU is hosting a free webinar on November 7. 

Over the last six months, the USCIS has issued several new policy memorandums. Join us for a webinar recapping these new memos and recent trends in adjudications. The webinar will cover: 

• Denial Notices issued without an RFE/NOID

• Notice to Appear (NTA) issuance 

• OPT/F-1 updates (including unlawful presence and 3rd party work-sites on OPT)

• H-1B 3rd party work-site and itinerary memo

• Rescission of deference to previous approvals 

Please click the link below to register for the webinar. 

WEBINAR LINK

Should you have any questions regarding the event or our services, please do not hesitate to contact Chris Musillo. 

This webinar is for MU Law clients and friends of the firm. 

We look forward to speaking with you! 

NOVEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the November 2018 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2019.  This blog post analyzes this month's Visa Bulletin.

November 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	PHIL'PNES
EB-1	01APR17	01JUN16	01JUN16	01APR17
EB-2	C	15MAY15	26MAR09	C
EB-3	C	01JUN15	01JAN09	08JUN17

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	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	15JUN15	22MAY09	C
EB-3	C	08AUG15	01OCT09	01JUL17

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

All Other, Mexico: Unfortunately no movement. Movement should start again in the next month or two.

China: The Chinese dates barely moved in November. We expect the slow/no progress to be standard in the first part of FY 2019.

India: The Indian dates did not move in November. We expect the slow/no progress to be standard in the first part of FY 2019. After that we expect slow, but regular progressions.

Philippines: The EB-3 date moved up by week, which is a good sign, considering most other categories in this month’s Visa Bulletin did not progress. Over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, both in Tables A and B.

USCIS ISSUES GUIDANCE ON NEW NOTICE TO APPEAR (NTA) POLICY

The USCIS has backtracked from a proposed policy change that would have placed H-1B and other employment-based workers immediately into deportation processing after the denial of a petition.  USCIS has decided to only enforce this new policy for denials of:

• I-485, Adjustment of Status
• I-539, Application to Extend/Change Nonimmigrant Status (typically, H-4, F-1, and B-1/B-2).

Under the revised policy, USCIS will send special letters to denied applicants if their I-94 card is expired.  The special denial letter is designed to provide adequate notice to applicants that they should depart the US.  If the applicant does not timely depart the United States, USCIS may issue a Notice to Appear (NTA).  An NTA initiates deportation proceedings.  You can read more about the NTA policy on our earlier blog post.

USCIS will prioritize the issuance of an NTA in cases of:

• Criminal records
• Fraud or misrepresentation
• National security concern

The USCIS will continue to use prosecutorial discretion when issuing an NTA in these instances on a case-by-case basis.

WEBINAR: USCIS NEW POLICY MEMORANDUMS

Over the last six months, the USCIS has issued several new policy memorandums. Join us for a webinar recapping these new memos and recent trends in adjudications. The webinar will cover: 

• Denial Notices issued without an RFE/NOID

• Notice to Appear (NTA) issuance 

• OPT/F-1 updates (including unlawful presence and 3rd party work-sites on OPT)

• H-1B 3rd party work-site and itinerary memo

• Rescission of deference to previous approvals 

Should you have any questions regarding the event or our services, please do not hesitate to contact Chris Musillo. 

This webinar is for MU Law clients and friends of the firm. 

We look forward to speaking with you! 

LAWSUIT ALLEGING HUMAN TRAFFICKING OF H-1B NURSES ALLOWED TO PROCEED AS A CLASS ACTION

As reported in the New York Law Journal, A Federal Judge will allow a group of Filipino H-1B nurses to continue their lawsuit against Sentosa Care as a “certified class.”  At issue was whether the nurses had to pursue their claims individually or whether they could proceed in one class action lawsuit.  By allowing the case to continue as a class, the lawsuit could lead to greater damage awards against Sentosa Care since it is generally easier for plaintiffs to pursue litigation together.  The plaintiff’s lawyer says that 200 H-1B nurses could now bring their claims.

The judge laid out the case in her decision.  The substantive issue is whether Sentosa’s pursuit of a damage clause in the employment contractual clause rises to the standard of violating the Trafficking Victims Protection Act.  The employment agreement entitled Sentosa to $25,000 in liquidated damages if the nurses left Sentosa’s employment prior to fulfilling the three-year contract. 

The nurses allege two claims:

1. Because the nurses were not paid the contractual wage from the time that they began working, the employment agreements were breached.  Therefore, Sentosa’s pursuit of the $25,000 violates several provisions of the TVPA.
2. Even if the agreements were not breached, the $25,000 itself is so far above Sentosa’s actual damages that pursuit of the $25,000 violates several provisions of the TVPA.  The judge notes that there is some evidence that Sentosa only spent a few thousand dollars per nurse.

Sentosa’s employment and recruiting practices have been the subject of lengthy litigation.  We will follow the case and report back as we hear anything.

OCTOBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the October 2018 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2019.  This blog post analyzes this month's Visa Bulletin.  

The USCIS is allowing Adjustment of Status filings based off of Table B, Dates of Filing.  If you are physically in the US, you can file your I-485 on October 1, if your priority date is earlier than the date in Table B.

October 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	01APR17	01JUN16	01JUN16	01APR17	01APR17
EB-2	C	01APR15	26MAR09	C	C
EB-3	C	01JUN15	01JAN09	C	01JUN17

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	01JUN18	01OCT17	01OCT17	01JUN18	01JUN18
EB-2	C	15JUN15	22MAY09	C	C
EB-3	C	08AUG15	01OCT09	C	01JUL17

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

All Other, Mexico:  EB2 and EB3 returned to current, as we expected.  They should stay current for most/all of FY2019.

China: The EB2 and EB3 dates moved into CY2015.  Our sense is that these dates will stay in 2015, slowly improving over this Fiscal Year.

India: These dates moved back into 2009, again as expected. We expect to steady progress in both categories in FY2019. 

Philippines: The fact that the EB-3 Final Action date stayed in 2017 is a terrific sign, indicating that there may be fewer immigrant visas in the pipeline than we had expected.  Over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, both in Tables A and B.