NEW USCIS IMMIGRANT FEE MUST BE PAID ON-LINE

On February 1, 2013, the USCIS instituted an additional $165 Immigrant Fee for immigrants who received their visas at U.S. Embassies and Consulates abroad.  The fee allows USCIS to recover the cost of processing the immigrant visa package and other information as well as producing and delivering the permanent resident card after immigrant visa holders are admitted to the United States.  This fee is in addition to the Department of State NVC immigrant visa fee.

Immigrants who receive their visas at must pay the fee online.   USCIS has moved the online payment of the USCIS Immigrant Fee to its Electronic Immigration System.  Customers must now pay the $165 USCIS Immigrant Fee using USCIS ELIS after they receive their immigrant visa package from the Department of State and before they depart for the United States. 

CAP-SUBJECT H-1Bs HAVE ALL BEEN RECEIPTED

The USCIS has confirmed through AILA that all 2013 H-1B cap-subject cases have been receipted in this past week.  This is a little quicker than we had expected.  If you have not received an H-1B receipt notice the chances are that your case did not win the H-1B lottery.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject is returning the petition along with the USCIS filing fees.

F-1 students who did not win the lottery must exit the US at the conclusion of their F-1/OPT period.

Many H-1B petitions are not subject to the H-1B cap, including:

* H-1B extension petitions

* H-1B transfer petitions

* Certain H-1B petitioners for University employers

* Certain H-1B petitions for Non-Profit Research organizations

JUNE 2013 VISA BULLETIN

The Department of State has just released the June 2013 Visa Bulletin.  

This Visa Bulletin showed incredible progress in the EB-3 numbers for All Other and China, each of which moved ahead by more than one year.  China's EB-2 numbers also improved, moving forward by two months.

India's EB-3 finally progressed into 2003, but it looking like a ten year Indian EB-3 retrogression shortly will be with us unless there is Comprehensive Immigration Reform.  India EB-2 remained frozen.

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

June 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15JUL08	01SEP04	Current
EB-3	01SEP08	01SEP08	08JAN03	22SEP06

TRACKING THE SENATE JUDICIARY COMMITTEE

The Senate Judiciary Committee has begun the arduous amendment process. More than 300 amendments have been filed by the Senate Judiciary Committee membership, many by Republicans looking to stop CIR.  The SJC is composed of far less than half of the Senate membership as a whole.  The SJC deliberations are expected to last for about two weeks.  After which, the SJC will take a vote.  

Although some members of the SJC are trying to torpedo the CIR bill, it is still expected to pass the SJC.  From there the Senate as a whole will act on the bill, where it is also expected to pass.  It remains to be seen by how much the bill passes the full Senate.   The greater the margin of passage, the better the likelihood of House action.  A lot hinges on the next several weeks.

MU Law will be in Washington DC next week meeting with Senate and House members' staffs educating them further on employment-based immigration issues, especially for the healthcare community.  We received a lot of positive feedback from our last trip in March.

WHAT CIR WILL HAVE IF WE HAVE CIR

Comprehensive Immigration Reform is heating up.  The Gang of Eight published a bill in April that is the first significant step in immigration legislation. MU Law has been to Washington to discuss the bill with Congressional staff. 

The bill is 850+ pages and will be amended many times before it ever come up for a vote.  While the final version is still a work in progress and it is still an open question as to whether CIR will ever pass, several things are becoming clear.  If CIR becomes law it will have these characteristics.

Greater H-1B visa numbers.  Current law allows 65,000 new “regular” H-1B visa approvals every fiscal year and an additional 20,000 for graduates of American Master’s degree programs.  American businesses have regularly asked Congress to raise this H-1B quota.  Congress is hearing the call.  Most potential legislation calls for increased H-1B numbers.

Increased H-1B Enforcement.  The trade-off for the greater H-1B numbers is greater enforcement regulation.  All versions of CIR step up funding for H-1B enforcement.

Special Third Party Placement Rules for H-1B Employers.  Since January 2012, USCIS has held staffing companies to a higher level of scrutiny.  Congress is now going further.  Placing employees at third-party worksites is outright prohibited for some employers and highly regulated in others.  

Abundant Green Card Numbers.  By increasing green card numbers, Congress hopes to incentive future employers and workers to adhere to immigration regulation.  For the industry this should mean faster green cards and less worrying about quotas.

E-Verify is here to stay.  E-verify is a federal program whereby voluntary employers can check a prospective employee’s work authorization.  Government contractors and some states have made E-verify mandatory.  Congress appears ready to require E-verify for all employers, likely phasing it in over a few years.

Shifting from Family Based Visa Numbers to Merit Based Immigrants.  One part of the CIR plan is that Congress appears to have settled on a merit-based green card.  A merit-based system would allow the Department of Homeland Security to weigh a number of factors, such as education, job prospects, US ties, and English fluency to prioritize an applicant’s visa.  The merit based system will come at the expense of the family categories and will eliminate the visa lottery program.

US EMBASSY - MANILA TEMPORARY CLOSED

The US Embassy - Manila Immigrant Visa Unit will be temporarily closed on Monday, May 13, 2013.  Applicants with appointments scheduled for May 13 will be contacted to reschedule their appointments.  Alternatively, applicants with appointments scheduled for May 13 may contact the Embassy’s call center at (632) 982-5555 or (632) 902-8930 from 8:00 a.m. to 8:00 p.m. (Monday through Friday) to reschedule their appointments.

Also, the American Citizens Services unit in Manila will be closed on Wednesday, May 8, 2013 for a regular training day.  Regular services will resume on May 9.

ELECTRONIC I-94 CARDS

USCIS and Customs and Border Security (CBP) have rolled out an automated I-94 card system effective this week.  Foreign entrants into the US via air and sea ports will no longer be given paper I-94 cards at the inspection desk.  Foreign nationals will be electronically registered by the Port of Entry officer.   This is a good step toward an all-electronic entry and exit system.

CBP has set up a dedicated webpage through which foreign nationals can review the electronic record of their entry and print out a paper copy of the I-94.  The paper copy is often needed by other federal and state agencies for immigration benefits and US drivers licenses.  One would hope that these agencies will be able to tap into the CBP system rather than relying on paper copies.

NURSES, COMPUTERS AND FUTURE JOBS

Slate’s Matt Yglesias is one of the internet’s best writers on economics.  His April 22, 2013 post explains why nursing should experience increasing demand in the near and long term, unlike many other “middle skilled” occupations.  His take-away:

An aging country is going to demand more health care services. A country that's politically committed to meeting the health care needs of the poor is going to demand more health care services. A wealthier society is going to demand more health care services.

His fellow Slate writer, Anna Reisman, who is also a physician, wrote an April 18 article in which she outlines the case for greater use of nurse practitioners and liberalized state licensing rules.  She cites an Institute of Medicine study that shows similar patient outcomes regardless of whether the patient is diagnosed by a Nurse Practitioner or Primary Care Physician. 

Yglesias takes it a step further.  He cites a recent study that concludes that computer models do a better job at predicting lung cancer patients’ treatment outcomes than doctors. 

Nurses are going to be more in demand.  They are going to need to be fully versed in technology and they are going to be even more responsible for patient outcomes.  Yglesias says it best: “with digital medical technology improving, there's going to be a broader and broader range of health care services that a well-trained nurse can provide without needing the many extra years of expensive medical education required to churn out a doctor.”

USCIS MAY TAKE UNTIL JUNE TO NOTIFY H-1B CAP WINNERS AND LOSERS

The USCIS has begun processing the 124,000 timely-field H-1B cap-subject petitions.   Because the H-1B category was oversubscribed, the USCIS will be returning approximately 15,000-20,000 H-1B petitions, after accounting for improperly filed and/or denied H-1B petitions. 

Between April 1-5 the USCIS registered each timely-field H-1B case into their system.  Each timely-filed H-1B cap-subject petition was given a filing number.  Once all 124,000 petitions were registered into the system, the USCIS randomly chose 85,000 winning petitions.  This “H-1B lottery” was held about 10 days ago.

The USCIS now has started processing winning premium processing petitions.  Contrary to incorrect internet rumors, this does not mean that premium processing petitions were given any benefit in the lottery.  The USCIS has confirmed on multiple occasions that non-premium petitions had the exact same chance of winning the H-1B lottery.

Processing of winning petitions consists of confirming proper filing fee payment and data entry of H-1B petitions onto USCIS internal computer system.  Once the H-1B petition is processed, Premium Processing adjudicators begin to assess the approvability of the petition. 

MU Law has had several H-1B premium processing petitions already approved.  We have also received a few premium processing RFEs.

Data entry of non-premium processing petitions will not be complete until at least May and perhaps June.  Rejection notices for petitions not selected in the lottery will be sent out after the data entry for winning petitions has been completed.  AILA points out that when the cap was reached on the first day in 2008, USCIS did not complete data entry and issue receipt notices until late in May 2008.

SENATE CIR OUTLINE RELEASED

An Outline of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which is the Senate’s "Gang of Eight" bill, has been released.  MU Law has posted a copy of the 17-page Outline on our Doc Stoc page.

It is important to recognize that this is just an Outline.  Several of the Outline's bullet points are inconsistent and outright contradictory with other bullet points.  It is also important to note that the bill is far from becoming law.  The Senate will have hearings to amend the bill throughout April and May. 

If the bill passes the Senate Judiciary Committee and the Senate as a whole, a separate Comprehensive Immigration Reform bill will be announced in the House of Representatives.  The House bill will also have to pass that chamber and then be remedied with the Senate bill.  Only then will it be presented to President Obama for signature.  The key take-away is that this bill is still many steps from becoming law. 

Keeping in mind that the final CIR may look different than this one, this MU Law Visa Advisor only highlights several key items that will be of interest to our clients and friends.  Also, although the 17-page Oultine includes sections on Border Protection and Undocumented Worker Legalization we have not summarized these areas of the law in this MU Law Visa Advisor since they are of lesser interest to our clients and friends.  

Here is the brief MU Law Summary of the Senate's CIR bill:

EMPLOYMENT-BASED GREEN CARDS
-          The Senate CIR bill calls for an immediate elimination of retrogression for currently-pending green card applications.  If this provision is true as listed in the Summary hundreds of thousands of long-delayed EB-2 and EB-3 applications would be immediately eligible for Adjustment of Status, Immigrant Visa appointments, and Green card issuance.  It is unclear how the USCIS and State Department would handle this immense overload of applications.

-          Going forward employment-based green card numbers would dramatically increase.  Theoretically this could mean that future retrogression is small.

EMPLOYMENT VERIFICATION
-          All employers will be required to use E-verify over a five-year phase in period, which will include enhanced photographic measures.

H-1B / L-1 VISAS
-          The H-1B visa cap will increase to 110,000, and can increase to 180,000 over seven years.

-          Spouses of H-1B visa holders will gain work eligibility.

-          H-1B prevailing wage rules may be changing, mandating higher wages for H-1B workers.  It is somewhat unclear in the Outline to what extent the prevailing wage rules will change.

-          Employers with more than 50 employees and who have 50% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $10,000 in H-1B / L-1 filing fees.

-          Employers with more than 50 employees and who have 30% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $5,000 in H-1B / L-1 filing fees.

-          By 2016 any employer who has more than 50% of its workforce on H-1B / L-1 status will be ineligible to petition for H-1B and/or L-1 visas.

-          All employers who wish to hire an H-1B must advertise the position on a government database for 30 days.

MAY 2013 VISA BULLETIN

While the Senate is readying a first draft Comprehensive Immigration bill and rallies around the country are hoping to influence a new immigration system, the old immigration system continues.  The Department of State has just released the May 2013 Visa Bulletin.  This Visa Bulletin shows more of the same: minor progress from last month's Visa Bulletin, with one notable positive exception.

The big news was a five month improvement in All Other EB-3 to December 1, 2007.  The China EB-3 number also moved to December 1, 2007.  All Other, and Philippine EB-2 dates remained Current.  The Chinese EB-2 visa date moved almost forward by six weeks.

On the other hand, the Philippine EB-3 date was disappointing, moving just one week, to September 15, 2006.  Also disappointing was India EB-2, which remained at September 1, 2004 for the seventh month.  

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

May 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15MAY08	01SEP04	Current
EB-3	01DEC07	01DEC07	22DEC02	15SEP06

H-1B CAP LOTTERY ANNOUNCED

The USCIS has reached the statutory H-1B cap of 65,000 for fiscal year 2014 (H-1B Regular Cap). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (H-1B Masters Cap).  This is the first year since FY 2008 that the cap has been reached so quickly.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period. 

H-1B CAP HAS BEEN REACHED

On Friday the USCIS announced that the H-1B cap has been reached.  The USCIS will hold a lottery and return any petitions for Beneficiaries who do not win the lottery.  F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period.

H-1B cap-subject petitions 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

WHEN WILL THE H-1B CAP BE REACHED?

The H-1B cap opened on April 1.  Any H-1B cap-subject petition that is received on or before April 5 is considered a first day filing.  It is unknown at this time whether the H-1B cap will be reached on the first day or not.  In a March 15, 2013 press release the USCIS predicted that,

Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013.

If the USCIS receives more petitions than it is statutorily allowed to approve it will commence an H-1B lottery.  Any H-1B petition that does not “win” the lottery will be returned to the employer.

This begs the question of whether the H-1B cap will in fact be reached by April 5.  MU Law had its busiest week, filing more H-1B cap-subject petitions than it ever has.  This leads us to believe that the H-1B cap will be reached by April 5.

ILW.com’s Roger Algase had an interesting report yesterday.  He says that a FedEx representative told him that their delivery service sent 23,000 to the Vermont Service Center on Monday April 1.  If this report is true then the H-1B cap surely will be reached by April 5.  FedEx is one of three major US courier services.  The Vermont Service Center is one of two receiving facilities for H-1B cap-subject petitions.  April 1 is just one of the five days that H-1B cap-subject petitions will be received.

Traditionally the USCIS announces when the H-1B cap is reached within 72 hours of the 65,000^th H-1B cap-subject petition filing.  Based on all of the data, MU Law’s expectation is that the USCIS will make an announcement sometime next week that the H-1B cap was indeed reached on April 5.

THE BLOG IS SEVEN

A little self-indulgence today.  I'm taking a brief time-out from the usual updates on healthcare immigration to note that this blog is seven years old.  The first blog post was on March 27, 2006 with my prior law firm.  At that time few immigration law blogs existed.  The idea of a blog with such a narrow focus seemed a little naive, but thanks to a regular readership the blog has thrived.  

In November 2007 Sam at ILW.com asked if I would like to syndicate my blog through ILW.com, which I immediately agreed to do. Readership doubled.   ILW.com has been a leader in immigration law information and a great supporter.  ILW.com now houses about a dozen blogs.  This one was the second.

The blog regularly attracts 10,000 monthly page views, sometimes doubling or tripling that number.  The current iteration of the blog (since 2009) has attracted about a half million page views, which is a number that I never would have thought was possible in March 2006.  

The best part about the blog has been the people that have connected with me through the blog.  I've been in Senate staff meetings and had their senior staff tell me that were regular readers.  AILA's Annual Conference is always a fun time because there are always a few attendees who read my name tag and tell me that they are regular readers.  Readers are always commenting. They are the blog's lifeblood. 

Thanks to all of you for your kind words and input.

The blog is accessible through a number of channels.  I hope that you will keep reading and commenting.

Main Page: www.musillo.com
ILW.com syndication: http://blogs.ilw.com/nurse_immigration/
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AHCA OUTLINES PRINCIPLES FOR IMMIGRATION REFORM

The American Health Care Association (AHCA) outlined its core principles for immigration reform in a March 12, 2013 Press Release. 

The AHCA recommends that these principles shape immigration reform:

1.       Let business and industry play a leading role. The long term and post-acute care profession is one of the largest job creators in the country and is willing and able to help drive solutions with Congress. Members of the long term care community employ immigrants and boost the economy. Any visa program must give employers, not the government, the primary say in which workers they need to staff their businesses. In addition, the labor market should also have the primary say in how many workers enter the country annually in a legal program.

2.       Create a viable guest worker program that would accommodate the needs of U.S. healthcare providers. The Health Resources and Services Administration (HRSA) projects that, absent aggressive intervention, the supply of nurses in America will fall 36 percent (more than 1 million nurses) below requirements by the year 2020.  AHCA urges the inclusion of allowing employers access to previously unused H-1B temporary work visas for nurses and physical therapists. 

3.       Waive the cap on employment-based visas for nurses and physical therapists, speech therapists and those providing other therapies. The current temporary and permanent visa programs are insufficient and inadequate to accommodate the needs of U.S. health care providers. The permanent residence program provides approximately 5,000 annual visas for essential workers. Clearly, current programs cannot handle our continuing need for foreign-born, essential caregivers.

CIR BILL COMING IN APRIL

MU Law has just returned from Washington DC where we, along with a group of about ten stakeholders, met with close to twenty Senators to discuss how healthcare immigration might fit into the forthcoming Senate  Comprehensive Immigration Bill.  The discussions were largely productive with most Senator's staffs in favor of the bill.  The consensus on The Hill is that the Senate's version of CIR is in the final stages of drafting and should be released in early to mid-April.

The particulars of the Senate CIR bill are still under lock and key.  The most controversial pieces of the bill have not yet been finalized.  One of the most difficult discussion is on a Guest Worker program.  Most Senators believe that for a Comprehensive Immigration bill to be successful it must contain a way for US employers to sponsor foreign workers who do not fit into the H-1B category.  The debate centers on where to draw the line.  Depending on where the line is drawn a Guest Worker program could qualify a range of healthcare workers for Guest Worker sponsorship.

If the Senate can reach an agreement and a bill is released, the focus will turn to the House of Representatives.  The House has its own group working on a bill.  The conventional wisdom seems to be that the House will take the Senate's bill and then work on a similar but not identical bill.  If the House can pass a similar CIR bill, then a Conference Committee will be formed.  

The Conference Committee will consist of members of both the Senate and House.  Their goal is to remedy inconsistencies between the two bills.  If that Conference Committee can reach an agreement, the bill will pass both chambers of Congress and presented to President Obama.  The President is expected to sign into law any reasonable bill that is presented to him.

H-1B CAP TO BE REACHED ON DAY ONE

In a March 15, 2013 press release, the USCIS announced, “based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013.”

Any H-1B cap–subject petition that is filed between April 1 and April 5 is treated as a first-day filing.  In accord with this information, MU Law strongly urges all clients to be prepared to file their H-1B cap-subject petitions ASAP. 

MU Law clients are reminded that all H-1B petitions must include a certified Department of Labor - Labor Condition Application (LCA).  The LCA takes 8 days to be certified, and so any H-1B cap-subject petition that is not initiated at our office by March 24, 2013 will not accepted in this year’s H-1B cap.

If the USCIS is correct and more than the 65,000 H-1B cap-subject petitions are reached on the first day, the USCIS will hold a lottery and return any H-1B petitions that are not lottery ‘winners’.  The USCIS will also refund the entire H-1B filing fee.

H-1B cap-subject petitions 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

H-1B petitions that are not subject to the H-1B cap include:
* H-1B extension petitions
* H-1B transfer petitions
* Certain H-1B petitioners for University employers
* Certain H-1B petitions for Non-Profit Research organizations

APRIL 2013 VISA BULLETIN

The Department of State has just released the April 2013 Visa Bulletin.  This Visa Bulletin shows minor progress from last month's Visa Bulletin.

Overall, the news remains disappointing.  India EB-2 remained at September 1, 2004 for the sixth month.  The Philippine EB-3 date was equally disappointing, moving just one week, to September 8, 2006.

On the other hand, All Other and Philippine EB-2 dates remained Current.  The All Other EB-3 jumped continued to steadily progress, improving about eight weeks. 

The Chinese Visa dates each moved two months.

 As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

April 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	1APR08	01SEP04	Current
EB-3	01JUL07	22APR07	08DEC02	08SEP06

H-1B CAP OPENS APRIL 1

The Fiscal Year 2014 (FY2014) H-1B cap season will begin on April 1, 2013. Last year (FY2013), the H-1B cap moved quite quickly. The H-1B cap was reached in June 2012, about five months faster than the prior year.

From 2009-11, the H-1B cap remained opened for at least one-half the year.  For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

It is unknown what the FY2014 H-1B demand will be. After speaking with clients and other immigration attorney-friends, MU Law expects that the H-1B cap will move quicker than last year, and will be reached in April.

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

Many healthcare professions ordinarily 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 cap-subject 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