H-1B TELECONFERENCE ON FEB 4

** REMINDER **

In anticipation of the H-1B cap filing date of April 1, 2015, MU Law will be holding a free teleconference for our clients on February 4, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Annalisa Smith, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2015.

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

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

THE BEST PROOF THAT THE H-1B IS NOT ABOUT TAKING JOBS

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, 2013 and 2014, 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 be impacted to any meaningful degree.   If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

This logic is straightforward and it is a shame that otherwise successful people cannot understand basic economics.  Organizations work better when they work on data and not nonsense.

H-1B TELECONFERENCE FEB 4, 2015

In anticipation of the H-1B cap filing date of April 1, 2015, MU Law will be holding a free teleconference for our clients on February 4, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Annalisa Smith, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2015.

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

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

WILL THE PRESIDENT PUSH CONGRESS ON IMMIGRATION AND WILL IT MATTER IF HE DOES

President Obama is readying this year’s State of the Union address.  The annual speech is given to Congress in late January.

Last year, he barely gave it a mention, stating, “If we are serious about economic growth, it is time to heed the call of business leaders, labor leaders, faith leaders, and law enforcement – and fix our broken immigration system.”

Congress failed to act on his mild plea and no immigration measure passed Congress.  Frustrated with Congress’ refusal to act, the President announced a large scale immigration reform measure in November, via Executive Action.

The broad proposal calls for immigration reform in a number of areas where the President believes that he can act without Congressional action.  About half of the State’s Attorneys General have sued the President seeking to block the enactment of the plan outlined in November.

At this point it seems like the President and the Congress are unwilling to make any steps toward a mutually acceptable immigration bill.  House Speaker Boehner seems more interested in Taylor Swift GIF’s than meaningful legislative measures.

CHANGES TO THE MANILA MEDICAL EXAM PROCESS

The US Embassy – Manila has begun a new medical exam process.  Effective January 5, 2015, St. Luke’s Medical Center Extension Clinic (SLMCEC) will release the medical exam results directly to the applicants unless instructed otherwise by the Panel Physician.

Immigrant Visa applicants are reminded to bring the sealed medical exam report to their scheduled interview at the U.S. Embassy Manila.  If your medical exam pouch is tampered, the Embassy will instruct you to return your exam to the SLMCEC for resealing.

Detailed information about the medical exam process is available at the US Embassy’s website.

FEBRUARY 2015 VISA BULLETIN

The Department of State has just released the February 2015 Visa Bulletin.  This is the fifth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date.  These are all now at January 2014.  

India EB-2 had a jump in dates as well.  It moved seven month and is now at September 2005.   India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15MAR10	15SEP05	C	C
3rd	01JAN14	01SEP11	22DEC03	01JAN14	01JAN14

EXECUTIVE ACTION EXPANDS THE USE OF THE EAD

MU's Maria Schneider authored the Greater Cincinnati Human Resources Association's January Guest Blog opinion. Maria's piece discusses President Obama's recent Executive Action on Immigration and the expansion of the use of the Employment Authorization Document.


President Obama recently announced the Immigration Accountability Executive Actions (IAEA), a series of changes to immigration policy. At this time, only summary policies have been released; over the next few months, more details will emerge.  The earliest of these changes will take effect in the first quarter of 2015.  

The following four parts of the IAEA allow individuals to obtain work authorization in the form of an Employment Authorization Document (EAD)(read more on the GCHRA website).

H-1 CAP INCREASE IN 2015?

With the New Year comes a new Congress and the potential for new legislation.  Both houses of Congress are firmly in Republican hands, and so all legislation proposed and passed by this Congress will be Republican in nature.

Over the New Year holiday several publications indicated that an increased H-1B cap may be first up on the Republican immigration agenda.  Computerworld suggests that the new Congress may move swiftly on increasing the H-1B cap.  Reporter Patrick Thibodeau says that the Congress may move on the I Squared Act.  The I Squared Act, which was authored by Sen. Orrin Hatch (R-UT) had bipartisan support when it was first introduced in 2013.  

The I Squared Act (Immigration Innovation Act) calls for the H-1B cap to increase to 115,000 per year, from its current 85,000. Additionally, the H-1B cap would contain a “market-based escalator” that would increase or decrease the H-1B cap as employer-demand ebbed and flowed, although it could never fall below the 115,000 threshold.  It could conceivably rise as high as 300,000 over several years.

Yesterday the Washington Post reported that Sen. Hatch reiterated that

“The new Congress has an opportunity to enhance America’s competitive workforce through immigration reform that will streamline the hiring process for high-skilled individuals entering the United States and by investing in STEM education and training.”

Presumably Sen. Hatch’s “opportunity” includes reviving last year’s I Squared Act.

President Obama has already laid down his marker with a bold Executive Order, which includes giving work permits to about 5 million undocumented aliens.  In using his Executive Order, President Obama has shown that he understands the power of the government to effect change.  His power is however eclipsed by Congress’.  It is Congress’ turn to act on that power.

VISA BULLETIN PROJECTIONS FOR 2015

AILA holds a regular meeting with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

India EB-2.  Mr. Oppenheim suggests that India EB-2 may slightly progress in the first-half of 2015.  Historically the Visa Office has waited until the summer to advance the India EB-2 date.

China EB-3.  China EB-3 is expected to continue to advance since demand has not yet been exceptional.   However, as more and more China EB-2 applicants “downgrade” their Application to EB-2, advancement will slow.

President Obama’s Recent Executive Action.  The Visa Office reminds users that the President’s Executive Action is not expected to have any impact on the Visa Bulletin.  While the Executive Action suggests that Adjustment of Status applications will be able to be filed much earlier in the green card process, these “pre-filings” will not impact the priority dates.

JANUARY 2015 VISA BULLETIN

The Department of State has just released the January 2015 Visa Bulletin.  This is the fourth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at June 2013, which is a progression of six more months.  It remains consistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.

India EB-2 remained stuck at February 2005.  The India EB-2 date retrogressed by four years recently and it does not appear  that any meaningful progression is imminent.  India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB10	15FEB05	C	C
3rd	01JUN13	01MAR11	15DEC03	01JUN13	01JUN13

US WORKERS SUE TO ELIMINATE OPT

The Washington Alliance of Technology Workers (WashTech), a collective bargaining organization that represents science, technology, engineering, and mathematics (STEM) workers, has sued the U.S. Department of Homeland Security seeking to eliminate the Optional Practical Training (OPT) program.  The OPT program allows foreign nationals on an F-1 student visa to engage in twelve months of employment during and following a full-time course load in a U.S. educational institution.  Certain STEM applicants can extend their OPT status an additional 17 months, pursuant to an April 2008 instituted by President George W. Bush’s administration.  The OPT is often seen as a bridge to the H-1B program.

WashTech argues that the OPT program causes actual harm to US technology workers because US employers hire these OPT workers when the employers could be hiring these US workers.  The WashTech plaintiffs have standing to make their case.  The court’s finding that standing exists means that the case can go forward, although the court’s decision does not speak to the likelihood of success when the substantive case is argued.

HOW AMERICA ENACTS LAWS

Funny stuff from Saturday Night Live, which attempts to explain how the President's Executive Order works.

PRESIDENT OBAMA TAKES EXECUTIVE ACTION

Last night President Obama announced the Immigration Accountability Executive Actions (IAEA), which is a series of wide-ranging changes to immigration policy.  Most of the major changes are centered on the undocumented community.  However, some changes will impact the business community.  At this point, only summary policies have been released by the administration.  Over the next few days and weeks, more details will emerge.  None of the changes are expected to take effect until after the New Year

MU Law will be holding a client teleconference on Tuesday December 2, 2014 at 2PM ET / 11AM PT for all clients and friends of the firm.  If you or anyone in your organization would like to dial-in to the teleconference, please contact Annalisa Smith (Annalisa@muimmigration.com) to register.

Here are the key components of the IAEA, with a focus on the policies that will impact clients and friends of MU Law:

1. Allowing earlier filing of the I-485, Adjustment of Status: Green card applicants will no longer have to wait until their priority date is current in order to file their I-485, Adjustment of Status. This is especially helpful for India and China EB-2 applicants and all EB-3 applicants in the US.

a. By allowing green card applicants to file their I-485, Adjustment of Status much earlier in the green card process than under the current process, applicant’s spouses will be able to obtain work authorization (EAD cards) many years earlier than under the current policy. 

b.  Once an I-485 is pending for 180 days, applicants are able to leave their green card employer-sponsor provided that they have found a “same or similar” position.  The President has also announced that the USCIS will be providing guidance on the definition of “same or similar”.  The forthcoming guidance is expected to be more liberal than the current interpretation.

2.  H-4 Work Authorization.  This long-proposed rule will allow spouses of H-1B workers to obtain work authorization.  Earlier this summer, the USCIS floated a proposal that limited the EAD to H-4 spouses whose H-1B workers have been in the green card process for at least one year.  A final regulation is expected in December or January.

3. PERM.  The Department of Labor is expected to “modernize” the PERM process, including a potential “harmless error” provision.

4. Entrepreneurs.  The administration will be “clarifying” rules regarding using the national interest waiver and parole processes for entrepreneurs.  It is expected that these rules will be liberalized to encourage investment and entrepreneurs.

5. L-1B Guidance.  The L-1B visa system is riddled with inconsistent decision-making.  The USCIS will be offering guidance to help on this issue.

6. OPT.  Optional Practical Training will be expanded.

7. Deferred Action expansion.  This provision is the focus of much of the media attention.  Some undocumented and illegal people in the US will be able to gain temporary three year work authorization and no longer be under the threat of deportation/removal. 

a. Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and

b.  DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. 

CGFNS TO OPERATE THE ALLIANCE FOR ETHICAL RECRUITMENT

The Alliance for Ethical Recruitment was formed in 2009 as a result of a funding grant from the MacArthur Foundation.  There always are perceived recruitment abuses in the international arena.  Some of these perceptions are borne out of very real abusive behavior.  Some of these perceptions are borne out of hysteria and junk statistics. 

The Alliance has tried for several years to root out the former.  It has struggled to gain traction.  Despite the Alliance’s efforts, only four employers have endorsed the Alliance Code of Ethical Recruitment, only one of which has joined since the pilot phase ended in 2010.  The AAIHR (of which MU Law is a member) also has a Code of Ethics, which has been more accepted by the industry. 

The Alliance is now about to shift gears.  CGFNS, who have long been involved in international nurse matters, will be operating the Alliance.  The Alliance will now be managed by Mukul Bakhshi, JD. 

The official launch of this new phase of the Alliance will take place at a reception in January at a location in Washington, D.C.

NVC NO LONGER COLLECTING ORIGINAL CIVIL DOCUMENTS

The Consular Process route to a green card consists of three steps: (1) Filing and approval of the I-140; (2) National Visa Center; and (3) Consular interview.  The middle stage, the NVC stage, consist of collection of fees for the processing of the Beneficiary and his or her family (often called “Fee Bills”) and the collection of a variety of civil documentation, such as birth, marriage, and police certificates.  In a break from the past, the NVC will now only collect photocopies of these civil documents.  The original civil documents should be brought to the Consular Interview in the home country.   Applicants at designated electronic processing posts will continue to submit their documents via email.  This new policy is effective as of November 12, 2014.

When the Consular Interview is scheduled, NVC will instruct applicants to bring their original documents to the interview for evaluation and final case processing.  Beneficiaries should note that Original Affidavit of Support forms will still be submitted to NVC for initial evaluation.  Affidavits of support are typically not used in employment-based immigration cases.  Affidavits of support are usually only used in family-based immigration.

By making this change, NVC hopes that it will maintain the integrity of the immigrant visa process, reduce customer wait times, and improve the customer experience overall.

DECEMBER 2014 VISA BULLETIN

The Department of State has just released the December 2014 Visa Bulletin.  This is the third Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at November 2012, which is more than a five year jump since March 2014.  It remains consistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.

India EB-2 remained stuck at February 2005.  The India EB-2 date retrogressed by four years recently and it does not appear  that any meaningful progression is imminent.  India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN10	15FEB05	C	C
3rd	01NOV12	01JUN10	01DEC03	01NOV12	01NOV12

EXECUTIVE ACTION OR ALL TALK AND NO ACTION?

President Obama showed no indication that he would back down from a pledge to take Executive Action on immigration despite the Republican party’s big wins in Tuesday’s elections.  He promised that he would take whatever lawful action he could if the Congress does not pass meaningful immigration legislation during the November-December lame duck period.  

However, he gave no details about whether the Executive Action would be limited to legalization of the undocumented or a broader action that might liberalize employment-based visa classes such as H-1Bs and employment-based green cards.  A list of Executive Action options includes both options.

Meanwhile the Tea Party republicans threatened to take legal action if the President does anything on immigration.  Republicans attempts at filing a law suit against President Obama seems to be riddled with problems.  Politico has reported that two different law firms have started and then declined to work on the Republican’s law suit in the last two months.

The longer that the President dawdles on the Executive Action pledge, the more he feeds the meme that his Presidency is one of all talk and no action.  

FEDERAL COURT CONFIRMS GREATER MISSOURI H-1B DECISION

The Greater Missouri Medical Pro-Care Providers H-1B case has been winding its way through the court system since 2006.  The key facts are that an aggrieved H-1B holder filed a Complaint with the Department of Labor alleging a multitude of H-1B violations.  The Department of Labor’s Administrative Review Board ultimately issued a Decision in January 2014.  The ARB decision is one of the best written and comprehensive legal discussions of an H-1B employer’s salary obligations that a practitioner will ever find. 

One of the key holdings concerns the statute of limitations for an employer’s H-1B violations.  The ARB found that the DOL does not need to limit its investigation to the single complaining H-1B employee.  The DOL may expand its investigation to all H-1B employees; however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  (Page 16, in the above-linked decision). 

The ARB’s decision contained a dissent by Deputy Chief Administrate Appeals Judge E. Cooper Brown.  Judge Brown opined that the DOL’s investigative authority should be limited to the complaining H-1B employee.  If Judge Brown's opinion had held court it would have significantly changed long-standing DOL investigative practice. 

The plaintiff, Greater Missouri, sought federal review of the ARB decision hoping to convince the federal court that Judge Brown’s dissent was the proper reading of law.  Last week, the federal court denied the Greater Missouri petition, probably ending the eight and a half year saga.

PRESIDENT OBAMA COULD EXPAND H-1B AND DOUBLE GREEN CARDS WITHIN THE NEXT TWO MONTHS

This November or December the President may expand the H-1B rules and double the number of employment-based green cards, through Executive Action.  Either would be welcome to an American industry that cannot find US workers in low supply occupations such as healthcare and information technology.  The Executive Action will happen between the November 4, 2014 and January 3, 2015.

Earlier this month the President hinted that he will use Executive Action to liberalize the H-1B program.  One method may be to finally enact rules that extend work authorization to spouses of H-1B workers.

Pundits have also said that the President could effectively double the number of employment-based green cards by changing the way that employment-based green card are counted.  Doubling the number of employment-based green cards would make most employment-based green card categories current, eliminating retrogression.

The Executive Action doctrine allows Presidents to implement changes to the law, as long as those changes are interpretations of established law and not the creation of new law.  There is a fine line between an interpretation and the creation of law.

The President controversially took Executive Action in June 2012 when he issued the Deferred Action for Childhood Arrivals (DACA).  DACA allows certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal.

The President originally planned to use Executive Action this summer in other areas of immigration law.  He has postponed those plans until after Election Day in order to appease Democrats in tough districts. 

It is expected that the House of Representatives will remain firmly in control of the Republicans.  The Senate, which is presently in control of the Democrats, will almost surely flip to Republican control.  This will give the Republicans control of both houses of Congress when the new Congress starts on January 3, 2015.  For this reason, the President is expected to act before the new Congress is sworn into office.

USCIS UNHELPFUL ON EB-2s FOR PHYSICAL THERAPISTS

The October 9, 2014 USCIS Headquarters Question and Answer session with AILA included a lengthy discussion on the issue of EB-2s for Physical Therapists.  The discussion was unhelpful and did nothing to make progress son this issue. 

This issue is that the USCIS refuses to acknowledge that the five year, 150+ credits Philippine degree is equal to a US Master’s Degree in spite of incredible evidence.  The USCIS’ refusal to do so means that Philippine Physical Therapists must file for an EB-3.  We have blogged on this topic in great detail.

This recent USCIS Q&A shows the USCIS’ obtuseness on the issue.  Instead of articulating a common standard, the USCIS says,

Rather than make a blanket statement regarding the merits of degrees evaluated by the FCCPT to be the equivalent of a first professional degree in physical therapy in the United States, USCIS will analyze the educational credentials of foreign workers practicing physical therapy on a case by case basis with due consideration being given to all submitted materials as well as to other credible resource material.

“Case by case basis” is legal code for “we have no standard.”  It simply is not that difficult analysis.