Wednesday, May 24, 2017

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:

EB-3 Worldwide.  Charlie expects EB-3 Worldwide to continue to be “effectively current” for the foreseeable future.

EB-3 India. Charlie predicts that the July final action date for EB-3 India will advance to October 15, 2005, which he reiterated at a May 18, 2017 meeting with AILA in Washington, D.C.

EB-2 India. Previously, Charlie believed that this category will recover to FY2017’s final action date.  Unfortunately, he no longer believes this to be the case.  This category may retrogress or exhaust in August, until October 1, 2017.

EB-3 Philippines.  Charlie did not comment on EB-3 Philippines, but MU Law’s internal tracking indicates that this category will continue to progress at the same rate as the last few months.  

Tuesday, May 23, 2017

H-1B CAP UPDATE

On May 3, 2017, the USCIS announced that it completed the data entry for the 2017 (FY 2018) H-1B cap season.  MU Law believes that it has received all of the H-1B receipts that it will receive this year.  Our in-house receipt numbers mirror the overall 42% receipt number.

H-1B Cap Approval Notices and RFEs.  Last week, Musillo Unkenholt received its first 2017 H-1B cap approval notices.  We have also received our first 2017 H-1B cap Requests for Evidence.  It is unclear how long it will take the USCIS to issue approvals and RFEs for the H-1B cap cases. 

H-1B Returned Petitions.  Musillo Unkenholt has not yet received any returned H-1B cap-subject petitions from USCIS.  Last year, we continued to receive unselected petitions into August.  Our hope is that the USCIS will be faster in light of the 20% decline in H-1B cap petition filings. 

H-1B Premium Processing.  What is also unknown is the state of the Premium Processing Service (PPS) for H-1B petitions.  In March the USCIS revealed that it would be suspending PPS for all H-1B petitions, including cap-subject, amendments, and extensions, for as long as 6 months.  A 6-month suspension of H-1B PPS means that H-1B PPS could be suspended until October 1, 2017.  USCIS has made no announcement as to whether it will shorten the H-1B PPS suspension since so few H-1B cap petitions were filed.

Wednesday, May 10, 2017

JUNE 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2017 Visa Bulletin.  This is the eight Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

June 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ-
ment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA
MEXICO  
PHILIPPINES  
1st
C
01JAN12
01JAN12
C
C
2nd
01MAR13
01JUL08
C
C
3rd
15APR17 
01OCT14
15MAY05 
15MAR17 
01MAY13


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional one month.  Consular processed EB-3 are effectively current.

China:   The DOS has instituted a retrogression for China EB-1.  The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017. 

The China EB-2 date again moved up, but only a few weeks.  The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date is being held for the month of June. Continued heavy demand for numbers will require a retrogression of China EB-3  no later than August.

India:  As with China, India EB-1 now is retrogressed.  It is expected that this EB-1 retrogression will last until October 2017. 

EB-2 India moved up about two weeks.  EB-3 India actually moved up almost two months.  It is our expectation that these two categories will move very slowly in the foreseeable future. 

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by yet another four more months.  The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, and half of 2013 EB-3 visas in about 6 months.  This is even more positive than we expected.  (Our note from September 2016"This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

Wednesday, May 3, 2017

USCIS COMPLETES DATA ENTRY OF H-1B CAP PETITIONS

USCIS has just announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process.  It may take a week or so for all of the H-1B cap receipts to be delivered.  If a Beneficiary has not received an H-1B receipt notice in the next week or so, it stands to reason that they have not “won” the H-1B lottery.

Shortly, USCIS will begin returning all H-1B cap-subject petitions that were not selected.  USCIS is unable to provide a definite time frame for returning these petitions.  USCIS will issue an announcement once all of the unselected petitions have been returned.

In order to balance the distribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center.  

Tuesday, May 2, 2017

PT INTERSTATE LICENSURE COMPACT MAY GO LIVE IN 2018

First reported by PT In Motion, The State of Washington became the tenth state to join the Interstate Licensure Compact for Physical Therapy (PTLC).  The tenth state is key because that is the threshold for the Compact to become effective.  

Once fully live, the PTLC will allow PTs in one compact state to practice in another compact state without having to obtain another state PT license.
The ten states are: Washington, Arizona, Kentucky, Mississippi, Missouri, Montana, North Dakota, Oregon, Tennessee, and Utah. 

Before the PTTC can go fully live, a Commission must be developed.  The Commission will establish the rules governing interstate practice.  It is expected that it will take about one year for the Commission to be established and the final rules promulgated.

APTA is optimistic that more states will want to join the PTLC now that the ten state threshold has been reached.  States that are interested in the PTLC should contact the APTA state affairs staff.

Wednesday, April 26, 2017

COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

One interesting legal question is whether the Trump administration could change the way that H-1B cap-subject petitions are allocated.  Under the current system, if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cap petitions that are filed during the first week of April. 

There is no Congressional authority for the H-1B lottery.  One federal court has said that USCIS’ implementation of an H-1B lottery is reasonable because Congress did not instruct the USCIS what to do if the H-1B cap when oversubscribed.  This case, Walker Macy v. USCIS, was just decided earlier this spring and is now on appeal. 

The Trump administration says that it seeks reform to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  Could the Trump administration attempt H-1B reform by replacing the H-1B lottery with an H-1B prioritization system based on the “most-skilled or highest-paid petition beneficiaries?”

My read is that it cannot.  As noted in the Walker Macy case, “when Congress is silent about a particular agency (or judicial) interpretation for a long period of time after that interpretation while repeated amendments have been passed, this demonstrates legislative acquiescence to the interpretation.”  In other words, the fact that the USCIS has long been using an H-1B lottery is compelling. 

The random process of the H-1B lottery is also fundamentally fair since it treats all timely -filed H-1B petitions identically.  Surprising to some, Congress has not spoken on the need to prioritize the “most-skilled or highest-paid petition beneficiaries”.  In fact, Congress has set forth a different standard. 


An H-1B is appropriate if a US employer is paying at least the prevailing wage of the occupational classification.  There is nothing in the Congressional statute that favors employers who pay a greater wage.  Therefore, it is dubious whether the Trump administration can implement this change to the H-1B lottery without Congressional action.

Tuesday, April 25, 2017

WHAT TRUMP CAN AND CANNOT DO TO THE H-1B

The US legal and legislative system framework is one checks and balances.  The legislative branch – the Senate and House of Representatives – creates and passes law, which in most instances must also be signed by a President. 

The executive branch, which now is headed by President Trump, is tasked with administering US federal law.  The President typically works through agencies and departments in order to administer the law.  For instance, the Department of Homeland Security administers laws concerning, among other things, US immigration.  The executive branch’s authority is limited by the underlying law that is passed by Congress. 

(As an aside, the President’s authority to administer law is also limited by the third branch of government—the judiciary.  In the short Trump presidency, we have seen several instances where the judiciary has not backed down from exercising their authority and limiting President Trump’s executive action.)

The scope of an underlying Congressional law is what limits the President.  Accordingly, there are some things that President Trump can consider to do, and other things that he probably cannot do.

Here is our list of H-1B-related changes that President Trump can probably because these actions probably do not exceed the underlying Congressional statute.
  • Revoke H-4 / EAD authorization.  This rule was put in by President Obama’s administration.  
  • Revoke prior Guidance Memoranda that is favorable to the H-1B program.  In fact, he has already started down this path by revoking a 17 year old memorandum on the approvability of Computer Programmers.
  • Increase H-1B employer or employee site visits.  Site visits are clearly within Presidential authority.  Again, the USCIS has recently released a press release notifying US employers of increased site visits.
  • Increase obtuse/harassing RFEs and NOIDs.  The President has indicated to DHS that it would like to see DHS use all its power to interpret rules against H-1B users.
  • Delay Consular approvals under a cloak of “background checks”.  The President generally has wide latitude to process or delay visa approvals.

Our next post will address whether the Trump administration could change the H-1B lottery to a system whereby H-1B lottery slots were awarded based on another criterion, such as the salary offered to the H-1B worker.

Tuesday, April 18, 2017

USCIS RECEIVES 199,000 H-1B CAP PETITIONS

USCIS announced on April 17, 2017, that it has received 199,000 H-1B cap-subject petitions, which is about 20% fewer than the 236,000 H-1B cap-subject petitions that were received in 2016 and the 233,000 that were received in 2015.  USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 43% of their H-1B cap filings to be H-1B cap winners.

As announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-exempt petitions, for up to six months.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Amend the H-1B petition to notify the USCIS of the filing of a new LCA and/or geographic change in employment;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second, contemporaneous part-time H-1B position. 

Friday, April 14, 2017

NOTIFICATION OF NON-ACCEPTANCE OF G-28

USCIS had begun notifying applicants and petitioners when their attorney’s Form G-28 has not been accepted.

The G-28 form is filed by the attorney with the case to notify the USCIS that the applicant or petitioner has a lawyer and that the lawyer should be notified of any updates on the case.

Previously, when USCIS did not accept Form G-28, neither the attorney nor the client was notified of the rejection. The immigration application or petition was simply processed without an attorney on the case.

The American Immigration Lawyers Association raised this issue with USCIS on several occasions, but it was not until the past year that USCIS advised that it was planning to start notifying applicants or petitioners when the G-28 was rejected.

On March 7, 2017, USCIS announced that it has added the following language to receipt notices when a G-28 was not accepted with an application or petition:

A valid G-28 was NOT received with your case. If you wish to be represented, please contact your attorney or accredited representative to submit follow-up G-28 to the USCIS location where your case is pending. For more information on filing G-28, please visit http://www.uscis.gov/forms/filing-your-form-g-28.


The receipt notices that include the above language will only be issued for cases that were filed at a lockbox facility. Cases that are directly filed with a local office will not contain the G-28 notice.

Wednesday, April 12, 2017

MAY 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

The Department of State has just issued the May 2017 Visa Bulletin.  This is the eight Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

May 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ-
ment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA
MEXICO  
PHILIPPINES  
1st
C
C
C
C
C
2nd
08FEB13
22JUN08
C
C
3rd
15MAR17 
01OCT14
25MAR05 
15MAR17 
01JAN13


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional one month.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date again moved up, but only a few weeks. The China EB-3 again date progressed about six weeks.  This was a smaller progression than the last few Visa Bulletins.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many historical Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India moved up about one day, which is the first one day progression that I can recall.  EB-3 India stayed the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly four more months.  The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, and 2012 EB-3 visas in about 6 months.  This is even more positive than we expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

Wednesday, April 5, 2017

USCIS LIMITS ENTRY-LEVEL H-1Bs FOR IT WORKERS; ANNOUNCES ADDITIONAL WORKSITE ENFORCEMENT

The USCIS has issued a Policy Memorandum that will likely lead to denial of Computer-related positions where the employer uses a Level 1 OES wage.  Accordingly, MU Law recommends that all clients use at least Level Two OES wages, or use alternative wage surveys.  The new Policy Memorandum takes immediate effect and will be used for all H-1B petitions: H-1B cap, H-1B extensions, H-1B transfers, and H-1B amendments.   

The March 31, 2017 Policy Memorandum rescinds a seventeen-year-old December 22, 2000 Policy Memorandum, issued by Nebraska Service Center then-Director Terry Way.  There is little doubt that the new Policy Memorandum is a direct result of immigration restrictionists in the USCIS who feel emboldened by the new Trump presidency.  It remains to be seen how restrictive USCIS officers will be as they interpret forthcoming computer H-1B petitions.

At virtually the same time, USCIS also has issued additional measures aimed at perceived abuses in the H-1B program.  The April 3, 2017 press release says that these site visits will focus on:
  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and 
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Thursday, March 30, 2017

LAST CHANCE FOR H-1B CAP PETITIONS

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Friday April 7, 2015.  Below are some key points to keep in mind about this year’s H-1B cap:

-The USCIS makes no accommodation for delays caused by couriers.  Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 3, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) has been suspended, starting April 3, 2017.  The suspension may last for six months.  The suspension includes all H-1B petition filings, such as H-1B cap cases, H-1B amendments, H-1B transfers, and H-1B extensions.

-In 2016, H-1B lottery results were not finalized until June.  It may even take the USCIS longer than in past years to notify all H-1B cap winners and losers. 

Monday, March 27, 2017

H-1B CAP SUPPLY AND DEMAND V. UNEMPLOYMENT RATE

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap was reached.  In 2010, it took 300 days until the H-1B cap was reached.  In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached.  Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, each year since 2013, mirroring the low unemployment rate.

















The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why?  Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.  If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

Tuesday, March 21, 2017

UPDATE: AILA CONFIRMS NO NEW POLICY CHANGE FOR TN-1 ADVANCE PRACTICE NURSES

Yesterday we posted about a new problem, US CBP officers were denying advance practice nurses’ applications for TN-1 visas.  The reports said that at least one US CBP officer was quoting a “change in policy”.  AILA has now confirmed that there is no policy change.  The law remains:  advance practice nurses qualify for TN-1 visas.

In our blog post, we called on US CBP quickly to clarify whether there was or was not a policy change. To this extent, US CBP acted swiftly and should be commended for their quick action.

Monday, March 20, 2017

DO ADVANCE PRACTICE NURSES QUALIFY FOR THE TN-1 ?

There is a mystery afoot at the northern border.  Last week reputable news organizations, such as the CBC, reported that advance practice nurses were being told that they no longer qualified for the TN-1 visa at the Canadian-Michigan border. 

The TN-1 visa is a visa authorized under NAFTA.  All of the jobs on the NAFTA occupations list are eligible for TN-1 visas.  The NAFTA list is purposely vague.  It does not list job descriptions for the occupations.  Any rational job description includes advance practice nurses under the registered nurse domain.  For instance, the State of Michigan law on registered nursing, includes advance practice nurses as a subset of registered nurse.  Advance Practice nurses have been using the TN-1 for 20+ years.

US Customs and Border Protection has been silent on the issue.  Immigration attorneys are unsure if the denials are based on one rouge officer’s mistaken understanding of law, or if it is a policy-wide decision.

Either answer is problematic.  If it is a rogue officer, then the US CBP ought to acknowledge their error, re-train the officer, and announce that advance practice nurses are eligible for the TN-1.  

If not, the administration ought to explain the rationale behind its policy-decision.  The administration’s own Department of Labor says that for US workers, ”job opportunities for advanced practice registered nurses are likely to be excellent.”  Protectionism may be a valid policy argument in some areas, but plainly not for advance practice nurses, who are the forefront of treating American patients. 

Thursday, March 16, 2017

MU’S MARIA SCHNEIDER NAMED TO CINCINNATI BAR ASSOCIATION BOARD OF TRUSTEES

MU Law is proud to announce that MU Law's Maria Schneider has been named to the Board of Trustees of the Cincinnati Bar Association (CBA).  Schneider’s two-year term will begin on May 1, 2017.  She will be officially inducted at the CBA’s Annual Meeting on April 27, 2017.

Schneider founded, chaired, and now Vice Chairs the CBA’s Immigration Practice Group.  Twice, under Attorney Schneider’s direction, the Immigration Practice Group won the CBA’s Ingenuity Award.  Schneider’s cover article on President Trump’s Executive Orders on immigration will be featured in the CBA Report in April 2017.

The CBA will reach its’ 150th Anniversary in January 2022.  The CBA Board will focus on “150 Prime,” a five-year strategically eruptive and positively disruptive plan to prepare, engage, envision, and motivate success representing attorneys in the Greater Cincinnati area.  The CBA has 3800 members throughout the Greater Cincinnati community.

Wednesday, March 15, 2017

H-1B CAP: PAST AND FUTURE DEMAND

This year’s H-1B filing date of April 1, 2017 is coming fast.  MU Law predicts that H-1B petitioners certainly will file in excess of 200,000 petitions during the H-1B cap window of April 1-7, 2017.  Last year’s record filing total of 240,000 may even be exceeded, although we have had reports of reduced demand this 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 three times as many H-1B petitions as 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 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

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

Friday, March 10, 2017

APRIL 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

The Department of State has just issued the April 2017 Visa Bulletin.  This is the seventh Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

April 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ-
ment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA
MEXICO  
PHILIPPINES  
1st
C
C
C
C
C
2nd
15JAN13
22JUN08
C
C
3rd
15FEB17 
15AUG14
24MAR05 
15FEB17 
15SEP12


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional two months.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date again moved up one month. The China EB-3 again date progressed nearly six months, just as it did in the March 217 Visa Bulletin.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India moved up about 3 weeks, while EB-3 India stayed essentially the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly six more months.  The Philippine EB-3 number essentially cleaned out most of the 2010, 2011, and 2012 EB-3 visas in less than 6  months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").