Wednesday, November 16, 2016

US RN SHORTAGE TO WORSEN IN THE COMING YEARS

American Public Media’s radio program Marketplace recently broadcast a story regarding the nursing shortage in the US, which is predicted to worsen over the next ten years.  The shortage is expected for the following reasons:
  1. More than one third of RNs in the United States are over the age of 50 and will begin retiring or working less hours in the coming years. 
  2. As these RNs retire, there are not enough new RNs to fill the open positions. 
  3.  The cost of training new RNs is going up.  Many RNs graduate with over $70,000 of debt, which has dissuaded some students from pursuing a career as an RN.  This has also led some US lawmakers to consider government grants for nursing students.  
  4.  By 2025 nearly 70 million Americans will be over the age of 65 and many will have chronic illnesses which will likely create more demand for RNs in the United States.
  5.  Many more Americans have access to healthcare under the Affordable Care Act (also called Obamacare); this too will cause more demand for medical treatment and the need for RNs.

The US Department of Labor, Bureau of Labor Statistics projects employment of RNs will grow 16% from 2014 to 2024, much faster than the average for other occupations.  Job opportunities for RNs are expected to be good.

Tuesday, November 15, 2016

MU’s CHRIS MUSILLO TO SPEAK IN CHICAGO, SAN FRANCISCO BAY AREA

MU’s Chris Musillo is a featured speaker at the Visa Solutions Seminars in Chicago and in the Bay Area.  Chris is speaking with Dave Brown of Brown Immigration in Omaha, Nebraska.  Chris and Dave bring over 30 years of combined business immigration experience. 

Register here.

The Chicago seminar is Tuesday November 29, 2016 8AM – 10AM at the Chicago Marriott Southwest. 

The Bay Area seminars are:

  • Sunnyvale, CA - Wednesday, December 7th, 2016 (8AM – 10AM), Plug and Play Tech Center, 440 N. Wolfe Road.
  • Oakland, CA - Wednesday, December 7th, 2016 (3PM – 4:30PM), Rosenblum Cellars, 10 Clay Street, Oakland, CA 94607, Complimentary wine tasting included after the event.
  • San Francisco, CA - Thursday, December 8th, 2016 (8AM – 10 AM), Hyatt Regency, 5 Embarcadero Center.

Registration is free if made in advance of the seminar.  The seminar will run for 90 minutes. The morning seminars include a complimentary breakfast and coffee. 

This program is valid for 1.5 PDCs for the SHRM-CPSM or SHRM-SCPSM andy has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval.

Seminar Topics
  • Navigating the 10 Most Important Immigration Issues Facing HR Today
  • How do I structure the PERM filing to avoid audit triggers?
  • How do I avoid hurting retention/morale while filing H-1s or PERMs?
  • Considering the scarcity of H-1B visas, what other options exist for recruiting foreign talent?
  • When is Premium Processing truly necessary and/or paid for by the company? When should a company allow an employee to pay it personally?
  • How and when should employers initiate the green card process?
  • When does the H-1B wage obligation start? When does it end? How does an employer effect a bona fide H-1B termination?
  • How do I create the perfect Public Access File and deal with a Department of Labor audit of a company’s H-1B files? What does the DOL look for?
  • Given last year’s Simeio Solutions decision – when/why must I file an amendment H-1B when someone moves location? And how do I avoid this problem?
  • How do I manage Customs and Border Protection issues and their penchant for incorrectly issuing Form I-94s at the port of entry?
  • How should I prepare for changing immigration policy under Donald Trump?


Wednesday, November 9, 2016

DECEMBER 2016 VISA BULLETIN: ANALYSIS

The Department of State has just issued the December 2016 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

December 2016 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
C
22SEP12
01FEB08
C
C
3rd
01JUL16 
01JUL13
15MAR05 
01JUL16 
01JUN11


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases a July 2016 date is effectively Current.

China:   The China EB-2 date moved up two months. The China EB-3 date progressed three months.  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 had another impressive progression from last month, moving forward three months.  EB-3 moved ahead by one week.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another two months.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just three 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.").  

We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in FY2017.

Monday, November 7, 2016

HOW THE US ELECTION WILL (OR WON'T?) CHANGE IMMIGRATION

On Tuesday US voters will go to the polls to elect 435 House of Reprehensive members, 34 Senators, and of course, a new US President and Vice President.  The biennial election will set the stage for the next two years of federal legislation.  Pundits are calling it the most important election of our lifetime and are predicting massive changes in immigration law.

If Hilary Clinton is elected, she promises to make immigration a top priority.  She is calling for Comprehensive Immigration Reform including a pathway to legalization for millions of undocumented and illegal foreign nationals.  She expects to have legislation proposed within her first 100 days.

If Donald Trump is elected, he is calling for  a wall along the US-Mexican border and greatly increased regulation in all corners of immigration.  His changes to the law will begin immediately

It seems unlikely to MU Law that any of this happen immediately.  It also seems unlikely that any immigration changes will be incremental, not dramatic. 

Immigration laws are implemented in two basic ways: legislatively and administratively.  Legislative laws must pass both branches of Congress, the House and the Senate.  The betting markets have concluded that the most likely outcome for this week’s election is that Hillary Clinton will win the presidency, the Democratic Party will have a tiny majority in the Senate, and the House will remain in significant Republican control.  Betting markets have proven to be a more reliable predictor of electoral outcomes than polls or pundits. 

That outcome is a recipe for gridlock.  Even if Hillary Clinton wants to push for a massive legalization program, she will need to convince at least 50% of the House membership to go along with the plan.  It is unlikely that a Republican- controlled House will want any part of a Clinton-inspired immigration bill.  They will be much more likely to spend their time on more email investigations and Benghazi hearings.

A President-elect Clinton may be able to make some progress on administrative changes, which is also known as Executive Action.  Administrative changes are interpretations of law by the Department of Homeland Security.  The President ultimately sets all policy for administrative agencies such as DHS. 

President Obama had some success in this area, such as sanctioning the DACA rules, which allowed undocumented foreign nationals to obtain work authorization if they entered the US as children, provided that they had no other criminal record.  

Through the USCIS, President Obama announced some additional Executive Action in November 2014.  He has had mixed success in this area.  He was rebuked by the courts for overstepping his administrative authority when he sought to create DAPA, a program that would have extended DACA-like rights to undocumented parents of US citizens and permanent residents.  On the other hand, the USCIS has expanded work authorization for certain spouses of H-1B visa holders. 

Which leads to our prediction: Hillary Clinton will win the US Presidency but will not have success passing meaningful immigration legislation.  She may be able to make marginal changes to immigration policy through administrative decision-making, which will likely be less-dramatic and newsworthy.

Friday, October 28, 2016

PTs SHOULD NOT LET FCCPT TYPE 1 CERTIFICATE EXPIRE

In a recent decision, USCIS demanded FCCPT issue Type 1 Certificates ONLY to graduates of university programs whose diploma reads “Master’s Degree” and who have at least 202.1 credit hours.  Any graduate of a program that is equivalent to a US Master’s Degree will no longer be eligible to enter the US and practice Physical Therapy.  In 2017, applicants will need a DPT to obtain a Type 1 Certificate.

Type 1 Certificate renewals will not be subject to this new ruling.  Renewal applications do not examine education, but only licensure and verification of English proficiency.  PTs with a current Type 1 can renew the Type 1 Certificate without being subject to the new standard.  However, if the Type 1 expires, the PT will have to make a new application and will be subject to the new standard.

Type 1 Certificates are valid for five years from the date of issue.  MU strongly advises PTs to timely renew their Type 1 Certification so that they can continue to maintain their immigration status and their ability to work in the US.

Wednesday, October 26, 2016

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DEC 23, 2016

Earlier this year in May the USCIS published a proposed rule to increase fees.  On October 24, 2016, the final rule was published adjusting the fees for most immigration applications and petitions.  The new fees will go into effect on December 23, 2016. 

The new fees are:

Form
Current Fee
New Fee
Change
I-129
$325
$460
$135
I-130
$420
$535
$115
I-140
$580
$700
$120
I-485
$1,070
$1,225
$155
I-539
$290
$370
$80
I-765
$385
$410
$25


A full list of all of the new fees can be found on the USCIS website.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The fee increase is the first in the last six years and.  The fees will go up an average of 21 percent and will recover the costs associated with fraud detection and prevention and national security.

Thursday, October 20, 2016

DOES A RELEASE AND SETTLEMENT PREVENT AN H-1B WORKER FROM BACK WAGES ?

When an H-1B employee separates employment from an H-1B employer, the H-1B employer often seeks a Settlement and Release.  The employer’s goal is to put the matter to rest.  It does not want the H1-B employer to file a private lawsuit seeking back wages or to file a Complaint with the Department of Labor. 

H-1B employers also often are seeking to collect on liquidated damage provisions, which allow the employer to recoup the costs associated with the separation of the employment relationship.  Costs such as reputational loss, replacement costs, and travel costs are usually recoverable under the H-1B rules

H-1B employer and employees often seek a “global settlement,” which settles all outstanding claims between the parties. 

A 2015 Department of Labor decision, Gupta v. Headstrong, 2014-LCA-00008, confirms the appropriateness and enforceability of these settlement agreements.  In Gupta, the Administrative Law Judge held that the Settlement and Release extinguish all of the h-1B employee’s claims to back wages.  Notably in Gupta, the two parties were the employer and the employee.  The DOL was not a party to that lawsuit.

It remains an open question whether an H-1B employer can legally prevent an employee from filing a Complaint with DOL following a proper Settlement and Release.  The DOL does not want to see any hindrance on an employee’s ability to file a Complaint to their agency. 

In Gupta the Department attempted to have the ALJ validate their reading of the law buy filing an amicus brief.   The ALJ did not address this issue in the Decision. The Department would not, of course, have bothered to raise the issue in the amicus brief if it were a settled issue of law. 

Nevertheless, an H-1B employee who fairly settles a back wage claim and who subsequently or concurrently files a complaint with the DOL solely on a back wage claim (and who continues to assert to the Department that the back wage claim remains unsettled following a settlement on those same claims) may be committing fraud before a government agency.  

Tuesday, October 18, 2016

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 in most of the popular categories for readers of this Blog.  Here are some highlights:

Philippine EB3 – Charlie again offered his most optimistic predictions for this category.  He expects that this category will move several months at a time because demand from those with priority dates from 2011-12 is lower than originally thought.  This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.  

India EB2 and EB3 – Charlie expects that EB2 will move into November 2008 by  March of 2017.  While he did not comment on EB3 at this time, last month he said that the EB3 category will move only one week per Bulletin.

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future.  It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.

China EB-2 and EB-3 - These categories will continue to see-saw.  The DOS is now seeing the EB-3 category demand pick up because of EB-3 "downgrades" from EB-2.

Wednesday, October 12, 2016

NOVEMBER 2016 VISA BULLETIN

The Department of State has just issued the November 2016 Visa Bulletin.  This is the second Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

November 2016 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
C
12JUL12
01NOV07
C
C
3rd
01JUL16
22APR13
08MAR05
01JUL16
01APR11


MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases a July 2016 date is effectively Current.

China:   The China EB-2 date moved up one month. The China EB-3 date progressed three months.  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 had another impressive progression from last month, moving forward over ten months.  EB-3 actually retrogressed one week.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another three months.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas in just two months and is now a trid of the way through 2011.  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.").  

We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in FY2017.

Thursday, October 6, 2016

SUPREME COURT REFUSES TO RE-HEAR CASE ON OBAMA’S IMMIGRATION EXECUTIVE ACTIONS

On Monday, October 3, 2016, the US Supreme Court refused to reconsider the case regarding the expansion of DACA and creation of DAPA.  DACA, created in 2012 will remain in place. 

President Obama sought to expand the qualifying criteria for DACA and create a program for the undocumented, immigrant parents of US Citizens.  President Obama created DACA and sought to expand DACA and create DAPA by Executive Order, not an act of Congress.  A group of states sued the US federal government, arguing the President did not have the power to expand DACA or create DAPA.  In 2015, a Federal Judge agreed with the states and held the program to be invalid. 

In January 2016 the Supreme Court agreed to hear the case and seemed poised to issue a landmark decision on immigration.  However, the Supreme Court deadlocked in a 4-4 decision which left in place the lower court’s, Federal Judge’s decision.  President Obama then asked that the Supreme Court re-hear the case.  

The Supreme Court rarely reconsiders a case, but sometimes agrees to do so when the court is split 4-4 because one of the 9 justices is vacant due to illness, retirement, or death.  Even if the Supreme Court had agreed to re-hear the case, the decision would not take effect until 2017 or later, after President Obama has left office.  This decision (or indecision) by the Supreme Court draws more attention to the question of immigration and presidential power in the upcoming election.  

Monday, October 3, 2016

LAWSUIT AGAINST H-1B LOTTERY SURVIVES KEY LEGAL HURDLE

Earlier this year, on June 2, 2016, a lawsuit against the USCIS was filed in federal court alleging the H-1B cap is unlawful because federal law requires H-1B applications be processed on a first come/first serve basis. 

The lawsuit was filed as a class action, a legal procedure which allows multiple individuals with the same grievance(s) to join together and file one lawsuit.  The case was filed by two employers and two H-1B workers whose cases were not selected in the H-1B cap.

The USCIS filed a motion to have the lawsuit thrown out of court, stating the H-1B workers cannot sue because they are not in the US and that the H-1B employers have not been injured by the H-1B lottery system.  On September 23, 2016, the federal judge in the case rejected these arguments and indicated the case will move forward.

If the lottery system is ended, the lawsuit argues that the USCIS should give priority dates to H-1Bs and process the cases in the order received, similar to how green cards are issued.  Alternative approaches which have been suggested by various stakeholders include:
  •           Raising the H-1B cap to a higher number
  •           Basing the number of H-1Bs on the demand in the US economy
  •           Creating H-1B cap exemption for those in STEM fields
  •           Creating H-1B cap exemption for Schedule A occupations (currently RNs and PTS)
  •           Creating H-1B cap exemption for those with a US master’s degree or greater

Wednesday, September 28, 2016

AAIHR: USCIS ACTION ON FCCPT HURTS PATIENTS, PRACTITIONERS

The USCIS is no longer allowing fully-qualified foreign-educated physical therapists to practice in the US unless they have qualifications that far exceed American-educated physical therapists.  This action harms US patients, who are already struggling to find qualified physical therapists.

A simple review of recent news stories shows that Physical Therapy is the occupation in shortest supply.  These supply shortage are already showing up across the US.  For instance, places like Texas, Arizona, and across the US.

The USCIS’ action is contrary to opinions by CAPTE, APTA, and the 53 State Boards of Physical Therapy, which includes all 50 states and other jurisdictions, such as Puerto Rico and Washington DC.

The American Association of International Healthcare Recruitment is gravely concerned by USCIS’ intent to deny the authority of the FCCPT to issue foreign physical therapy healthcare worker certifications. Musillo Unkenholt, who is a member of the AAIHR, is working closely with the AAIHR to develop a strategy and dialogue with the USCIS over this decision.

APTA reports the shortage of physical therapists could potentially reach over 27,000 in the United States by 2020, driven by a Bureau of Labor Statistics projected 34 percent increase in demand in physical therapists over the next eight years. This projection assumes that physical therapists trained abroad will continue to immigrate. The USCIS decision will only worsen this shortage.

Tuesday, September 27, 2016

USCIS WILL ALLOW MORE I-485 FILINGS IN OCTOBER THAN USUAL

USCIS has announced that for October 2016 it will allow I-485 filings for those immigrant visa applicants who qualify under the more favorable Date of Filing chart

Dates of Filing Chart - October 2016

Employment-
based
All Chargeability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA
PHILIPPINES 
1st
C
C
C
C
2nd
C
01MAR13
22APR09 
C
3rd
C
01MAY14
01JUL05
01SEP13

If you have a priority date earlier than the dates listed on the above table, and you are lawfully in the United States, you can file your I-485 from October 1-31, 2016.  Please keep in mind that the USCIS will not approve your immigrant visa application unless your priority date is earlier than the standard Final Action chart.

Final Action Chart- October 2016

Employment
based
All Charge-
ability 
Areas Except
Those Listed
CHINA-
mainland 
born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
15FEB12
15JAN07
C
3rd
01JUN16 
22JAN13
01MAR05
01DEC10