Tuesday, May 24, 2016

H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

The H-1B regulations prohibit an employer from receiving, or the employee from paying, the filing fee for the visa. 20 C.F.R. §655.731(c)(10)(ii). H-1B employers must also pay certain other “business expenses” that are connected to the H-1B program.

In Dedios, the court found that the H-1B employee’s payment of legal fees, USCIS filing fees, and educational evaluation fees were all “business expenses” connected to the H-1B program.  Therefore when the H-1B employer required the H-1B employee to make these payments, the H-1B employer violated law.

In limited circumstances H-1B employees can pay for some costs that may be related to an H-1B employee’s employment.  These circumstances are found at 20 CFR 655.731(c)(9)(iii).  

Monday, May 23, 2016

DOL CASE HIGHLIGHTS ALL ASPECTS OF H-1B EMPLOYER LIABILITY

A recent Department of Labor decision, DeDios v. Medical Dynamic Systems, Inc., is a great primer on how employers and attorneys should treat H-1B employee salary obligations.  The case highlights several key issues: when does an H-1B employer’s salary obligation begin, when does it end, whether an employee may pay the H-1B filing and professional fees, and how to treat “benching”.

MU Law is using the DeDios case for a series on H-1B employer wage obligations.  We have also updated our “Top 10 things employers should keep in mind in order to stay compliant with the H‐1B visa process”.  If you would like a copy of the Top 10, please let us know.

The series will run over the next few blog posts.

Wednesday, May 18, 2016

UPDATES ON THE VISA BULLETIN

AILA recently published its May “Check-In with Charlie”.  The Check-In is a Q&A with the Department of State’s Chief of the Visa Control and Reporting Division.  Charlie is ultimately the person responsible for the publication of each month’s Visa Bulletin.  This month’s Check-In provided these insights into the Visa Bulletin for Beneficiaries of the most common employment-based immigrant visas.

India.  The EB-2 date will only advance slowly for the remainder of the US Fiscal Year, i.e. until October 1, 2016.  The EB-3 date will also move slowly for the rest of this fiscal year.

China. EB-2 China has a more favorable date than EB-3 China.  This is expected to remain in place for the remainder of the fiscal year.  Since China EB-2 is now more favorable than China EB-3, it is expected that EB-3 “downgrades” will end.

Thursday, May 12, 2016

USCIS PUBLISHES PROPOSED FILING FEE INCREASE

On May 4, 2016, the USCIS published a proposed rule that will increase filing fees by an average of 21 percent.   The proposed fees for most business immigration filings are in the table, below.  The above-link will lead the reader to the full list of proposed increases. 

USCIS is taking public comments through July 5, 2016.  They last raised their fees in 2010.  USCIS fees basically pay for the entire USCIS budget.  Very little of the USCIS’ budget comes from federal tax dollars.

Proposed fees

Form
Current Fee
Proposed Increase
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
+$30

Tuesday, May 10, 2016

JUNE 2016 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2016 Visa Bulletin.  This is the ninth Visa Bulletin of Fiscal Year 2016. 

June 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).
Employment- Based
All Chargeability Areas Except Those Listed
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JAN1001OCT04CC
3rd15FEB1601JAN1022SEP0415FEB1601NOV08
MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains at Feb 15, 2016, just as it was last month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Both Chinese categories retrogressed, reflecting greater demand.  The DOS predicted that EB-3 would retrogress in a note to last month's visa bulletin.

India:  EB-3 moved ahead a few weeks.  But the EB-2 retrogressed by four years.  We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization

Employment-
Based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JUN1301JUL09CC
3rdC01MAY1501JUL05C01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 

Wednesday, May 4, 2016

USCIS ISSUES NEW OPT STEM EXTENSION PROGRAM

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months and that students are now permitted an aggregate of 170 days of unemployment for OPT and the STEM Extension period.  For more information, please visit https://studyinthestates.dhs.gov/

EMPLOYER REQUIREMENTS

The new STEM Extension Program requires more from employers.  To employ a student under the new STEM Program, employers must:
  1. Be an E-Verify employer.  This remains unchanged from the previous STEM Extension Program.
  2. Pay the student a wage commensurate to similarly situated US workers.  The calculation of this wage should be documented in the student’s employment record.
  3. Employ the OPT student for at least 20 hours per week in a position that is directly related to the student’s degree.
  4. Report any material changes in the student’s employment to the appropriate school official.  Material changes include: a change in the student’s hours, compensation, worksite, supervisor, or changes to the corporate structure.  Employers must also report a termination or resignation of employment to the school official within 5 business days.
  5. Be subject to site visits by USCIS Officers to verify the student’s employment.
  6. Complete and comply with a training plan for the student’s employment.  See below for additional details about the training plan.

TRAINING PLAN

The STEM Extension Training Plan has four components:
  1. Describe the student’s role.  List specific tasks, give time frames and goals, describe the phases of the student’s training.
  2. Identify the goals and objectives of the training.  State specific skills, techniques, or knowledge the student will gain while employed and describe projects or assignments where the student will use these skills.
  3. Detail the employer’s oversight of the student.  State the frequency with which the student will meet with his/her supervisor.  Detail how the supervisor will review or sign off on the student’s work and describe any existing training programs in place.
  4. Define the measures and assessments by which the student will be evaluated.  Detail how the student’s progress will be tested.  Note any new technologies or skills which will be learned and keep a journal of or regular reviews of student’s work.

Employer’s Certification 

Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the Immigration Service.  By signing the training plan, the employer confirms:
  1. Employment is directly related to the student’s degree and achieves the objectives of the training program;
  2. Student will receive supervision and training by experienced staff;
  3. Employer has sufficient resources and personnel to provide training to the student;
  4. The OPT student is not replacing a full- or part-time, temporary or permanent US Worker.  The terms and conditions of the student’s employment are commensurate with similarly situated US Workers at the company.
  5. The training complies with all applicable federal and state requirements related to employment.

TRANSITION RULES

There are three primary groups of students impacted by the implementation of the new STEM Extension Program:

1.  Students on a 17 month STEM Extension.
  • These students with 150 days of time left on their OPT can apply for an additional 7 months of OPT, giving them the full 24 months of STEM OPT.
  • These 7 month requests must be filed between May 10 and August 8.  The request requires a new I-20, I-765, and filing fee.
  • If the student elects not to ask for the 7 month extension, the student completes the STEM OPT Period under the old rules.
2. Students with a pending STEM Extension on May 10, 2016.
  • The new rules apply to the STEM extension request.  These students should expect an RFE to be issued requesting a training plan and other new requirements. 
  • By responding to the RFE the student amends the STEM OPT to the full 24 month period without filing a new request.
3.  Students on a 12 month OPT.
  • If the OPT expires before May 10, the student should file for the 17 month STEM Extension and expect an RFE (as outlined in #2 above).
  • If the OPT expires after May 10, the student should file by June 1 under either STEM Extension Program - the 17 month or 24 month.
  • If the OPT expires after June 1, the student must file the STEM Extension under the 24 month program.

Tuesday, May 3, 2016

PROPOSED H-2C LAW WOULD ALLOW QUICK VISAS FOR NURSES, OTHER NON-H-1B OCCUPATIONS

Sen. Flake’s bill, the Willing Workers and Willing Employers Act of 2016, will allow workers who work in Job Zones 1 through 3 to perform year-round non-agricultural work in the United States.

Job Zones 1-3 generally are those positions that require less than a bachelor’s degree, such as registered nurses, licensed practical nurses, physical therapy assistants, occupational therapy assistants, caregivers, and other similar allied health professionals.

Sen. Flake’s bill includes many US worker protections, such as: 
  • Sponsoring employers would have to pay a “Scarcity Recruitment Fee,” in addition to USCIS filing fees.  This fee is equal to 5 percent of the H-2C’s annual salary.
  • The job must be in a full employment area, which is a county whose unemployment rate is 4.9 percent or less.
  • Employers have to attest that there are no US workers being laid off as a result of the H-2C workers’ employment.
  • Employers have to prove that they have actively recruited US workers for the position.
  • Employers would have to participate in E-Verify.

The H-2C program would be active for 10 years.  It will have a flexible cap of 45,000 – 85,000 depending on demand.

H-2C visa holders would also be barred from bringing in any family members into the US.  However they would be able to file for permanent residency, at which time their family members can come to US.

Unfortunately, most pundits give Sen. Flake’s bill virtually no chance of passing.  While this bill is not perfect, it is good to see that there are some Republican Senators who still understand the value that immigration brings to the US.

Thursday, April 28, 2016

NURSE SHORTAGE SHOWING SIGNS ALL ACROSS THE US

As the economy improves, the nursing shortage will continue to escalate.  The reasons are many: Baby Boom Generation Demand, Aging Nursing Workforce, Few Nurse Educators, Distribution Challenges, and a lack of available visa for Foreign-trained Nurses. 

We may be approaching the tipping point.  We are beginning to signs from all across the US that nursing shortages are impacting patient care.  All of the articles linked below have been published in the last 10 days.

Alabama: “School nurses in the Mobile County Public School System say they're in a crisis. Many spoke at the board meeting Monday night to explain how not having enough nurses is putting children's lives in danger.

South Dakota:  “A shortage of registered nurses has become so severe at one South Dakota hospital that it’s actually been forced to close hospital beds.

Oregon and Washington: “Oregon and Washington will be short a combined 13,000 registered nurses by 2025”.  This article cites the aging nursing workforce, the distribution problems, and the lack of nurse educators.

Georgia: “A nurse shortage has driven up wages, making it hard for nonprofits like hers to compete.

Kentucky: “the one thing abundantly clear is that the problem lies not only in putting students in seats, but in finding educators to get them to the cap and gown.

Tuesday, April 19, 2016

DOS ADDRESSES EB-3 PHILIPPINES AND INDIA VISA BULLETIN RETROGRESSION

AILA regularly checks in with Charlie Oppenheim, who is the Department of State’s expert on Visa Bulletin numbers.  Their most recent Check In with Charlie contains his projections for several major visa categories.

EB-3 Philippines

The expectation is that Philippines EB-3 VB date will continue to advance a few months at a time, consistent with movement over the past few months.  He “hopes” that the date will progress into mid-2010 before the end of this fiscal year in September 2016.

There are currently about 4,200 immigrant visas in the pending demand file.  The Texas Service Center has 1,600, the Nebraska Service Center has 1,200, and the US Consulate in Manila has 1,400.

Charlie expects EB2 Philippines to be current for the foreseeable future.

EB-2 and EB-3 India

Both India EB-2 and EB-3 will move slowly forward, although because of unusual demand for EB-1 it is difficult for Charlie to accurately predict movement in these categories.  Normally, light demand for EB-1 numbers means that unused EB-1s trickle down into the EB-2 category.  The government is also seeing increased upgrade demand, where previously approved EB-3s are now being re-field as EB-2s.

New Final Action Date for EB-4 for El Salvador, Guatemala and Honduras

The usual sight of these countries appearing on the Visa Bulletin is because of demand for EB-4 Special Immigrant Juvenile (SIJS) applicants.  While this means retrogression for these categories, it should have no impact on the traditional EB-1, EB-2, or EB-3 categories in other countries.

EB-2 and EB-3 China

It will likely be necessary to retrogress these categories due to increasing demand for these immigrant visas.

Friday, April 15, 2016

USCIS CONFIRMS 236,000 H-1B PETITIONS WERE FILED

USCIS announced on April 7, 2016, that it has received 236,000 H-1B cap-subject petitions, which is slightly more than the 233,000 H-1B cap-subject petitions that were received in 2015.  USCIS is in the process of running the H-1B lottery.  USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

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;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

Tuesday, April 12, 2016

MAY 2016 VISA BULLETIN

The Department of State has just issued the May 2016 Visa Bulletin.  This is the eighth Visa Bulletin of Fiscal Year 2016. 

May 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).
Employment- Based
All Chargeability Areas Except Those Listed
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01SEP1222NOV08CC
3rd15FEB1615AUG1301SEP0415FEB1601AUG08
MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains at Feb 15, 2016, jsut as it was last month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Neither Chinese category moved this month.  This May Visa Bulletin included a note on Chinese EB categories:

CHINA E3:  There has been an extremely large increase in Employment Third preference applicant demand in recent weeks.  This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference.  This has resulted in the Third preference final action date being held for the month of May.  Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.

India: EB-2 and EB-3 moved ahead a few weeks.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization

Employment-
Based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JUN1301JUL09CC
3rdC01MAY1501JUL05C01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 

Friday, April 8, 2016

USCIS REACHES FY 2017 H-1B CAP

In a surprise to no-one, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap of 85,000 visas for fiscal year (FY) 2017.

As in the last few years, USCIS will use a computer-generated process (H-1B lottery) to randomly select H-1B petition “winners”.  The agency will reject and return filing fees for all unselected cap-subject petitions.

USCIS’ press release indicates that it cannot yet determine when it will conduct the random selection process.  USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 11, 2015.

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.

Likewise, H-1B extensions and amendments are also not subject to the H-1B cap.  MU Law recently posted a blog on alternatives to the H-1B cap, which you can access here.

Friday, April 1, 2016

OPTIONS IF YOU LOSE THE H-1B LOTTERY

The H-1B cap opened on April 1, 2016.  On April 7, 2016, or shortly thereafter, the USCIS will announce that it has received more than 85,000 H-1B petitions, which is the H-1B cap limit.  MU Law believes that the USCIS will reports that at least 200,000 H-1B petitions will have been filed, and perhaps as many as 250,000.  As a result, the USCIS will hold an H-1B lottery.

The H-1B cap is clearly a drain on the US economy.  Nonetheless, until Congress acts to help the American economy and raises the H-1B cap, the H-1B lottery will result in many otherwise qualified H-1B workers having to consider alternative visa options. Here are some options:
  • Those that have had an H-1B in the past are often not counted against the H-1B cap.  If you have had an H-1B approved in the past, you should contact your attorney, even if you have never entered the US and activated the H-1B.
  • H-1B cap-exempt employers can file for H-1Bs at any time.  An H-B cap-exempt employer is (1) a University; or (2) a non-profit that is related to a University, such as a University Hospital; or (3) A Non-Profit research organization; or (4) A Non-Profit government research organization.
  • Nationals of these countries have alternative visa categories that are similar to the H-1B, but are not subject to the H-1B cap: Canada, Mexico, Australia, Chile, and Singapore.  If you hold a passport from any of these countries you can seek a visa such as a TN-1, E-3, or H-1B1.
  • OPT for F-1 Students.  The F-1 rules liberally allow students to work in the US.  Many students can now work for 24 month, after their graduation from a US college.
  • Green Card filings can often be done quickly.  All categories except India EB-2, EB-3, China EB-2, EB-3 and Philippine EB-3 have very favorable processing times.  Most applicants who qualify for categories other than these should expect their green cards in 12-18 months.
  • The L-1 visa (Multinational Executive, Managers, and Specialized Knowledge workers), the O-1 (Extraordinary Ability) and the E-1/E-2 (Treaty Trader and Treat Investor) offer some options for high level and critical employees.