Thursday, October 17, 2019

NOVEMBER 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS


The Department of State has just issued the November 2019 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

November 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment-
based
All Other
CHINA
INDIA
PHILIPPINES
1st
01JUN18
01FEB17
01JAN15
01JUN18
2nd
C
15MAR15
13MAY09
C
3rd
C
01NOV15
01JAN09
01FEB18


MU Law Analysis (all references are to Table A unless noted)

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines: As we expected, EB-3 leapt forward almost 4 months.  We still find the implementation of the EB-3 priority date to be too conservative.  MU expects that this date will continue to rapidly move in the coming months, and could return to current in early 2020.


Wednesday, October 16, 2019

ANALYSIS OF CURRENT RFE TRENDS AND HOW TO GET YOUR CASE APPROVED

Don't forget to register for our free webinar happening Wednesday November 13, 2019 at 2PM / 11AM PT. We hope to see you there! Click the REGISTER link on the right to sign up!

Register Here

This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  
  
Webinar Agenda:
1.   H-1B issues
·       Specialty Occupation
·       Availability of Work
·       Right to Control
2.   I-140 Issues
·       Bona Fide Offer
·       Ability to Pay
3.   I-485 Issues
·       Maintenance of Status
o   F-1 to Green Card
o   H-1B to Green Card
4.   Q&A

PLEASE JOIN US!

Tuesday, October 15, 2019

NEW “PUBLIC CHARGE” RULE SUSPENDED


On Friday, October 11, 2019 three Federal Judges in three separate cases stopped the USCIS from implementing the new public charge rule, which included using the new versions of the I-485, I-129, and I-539 as well as the implementation of the new form I-944.  Until final decisions in these three cases are issued or the injunction is lifted, USCIS will accept the older versions of the forms. 

In addition, late last week, the Department of State created their own public charge rule to mimic the new USCIS rule.  According to the latest information, the Department of State rule will still go into effect on October 15, 2019 as planned.  Those obtaining their green card through an Embassy interview will likely need additional documentation to provide at the Embassy interview.  Consult with your MU attorney in this regard.


UPDATE: The State Department public charge rule will take effect tomorrow—but it won't be implemented until a new form is approved, per a @StateDept official via CBS News. 

CBS News:

Wednesday, October 9, 2019

PRESIDENTIAL PROCLAMATION REGARDING IMMIGRANTS AND HEALTH INSURANCE

On October 4, 2019, the President issued a proclamation stating individuals entering the US from abroad on a green card must now be covered by approved health insurance within 30 days of entering the US.  This new rule will take effect on November 3, 2019.


Approved health insurance includes:
  • An employer-sponsored plan
  • An unsubsidized plan offered in a US State’s individual market
  • A short-term plan effective for at least a year or until the foreign national plans to leave the US for extended travel
  • A catastrophic plan
  • A family member’s plan
  • A military healthcare plan, such as TriCare
  • A Medicare plan
  • Any other plan that is deemed adequate by the Secretary of Health and Human Services.

Applicants must be able to present evidence to the Embassy Officer reviewing their case that the applicant will have health insurance before the issuance of the visa to enter the US.

This new rule applies to those seeking entry to the US on a green card for the first time.  Children who are under the age of 18 and entering the US with their parents are exempt from this rule. 

This rule does not apply to those who have received a green card in the past and are returning to the US after a trip abroad.  This rule also does not apply to those entering the US on a nonimmigrant visa, e.g. H-1B, TN, L-1, for F-1.  

Friday, October 4, 2019

IMPLEMENTATION OF THE NEW “PUBLIC CHARGE” RULE – DRAFT USCIS FORM I-944

On August 14, 2019 the Department of Homeland Security (DHS) announced a new “public charge” rule; this rule will go into effect on October 15, 2019 and directly impacts all individuals applying for a green card. 

At this point the Trump Administration has only released a draft version of the new Form I-944.  USCIS has not yet released any final forms or documents.  Accordingly, we are advising clients to try and file as many cases before October 15 because it is impossible to say with certainty what the new forms will require.

Background

A public charge is someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changes the standard by the USCIS determines whether a foreign national is likely to become a public charge.  Under the previous policy, USCIS examined whether an intending immigrant was primarily dependent on public benefits.  Under the new rule, USCIS will examine whether immigrants are likely at any time to become a public charge, using a multi-factor test. 

USCIS is now required to consider a range of factors when making a determination if the foreign national visa applicant is likely to become a pubic charge.  These factors include:

a.   Receipt of a public benefit for more than 12 months in the aggregate within a 36 month period
b.   Age
c.    Health
d.   Family status
e.   Education and skills
f.     Assets, resources, and financial status

New Form I-944

A draft version of the form I-944, Declaration of Self-Sufficiency, has been released by the USCIS.  In addition to the I-944, new versions of the several other immigration forms required for green card applications, H-1Bs, and H-4s will be updated.  The USCIS has not yet published the final version of the I-944 and the other revised forms.

The draft version of the I-944 requires all green card applicants to provide detailed information about his or her household.  The applicant’s household includes anyone listed as a dependent on the applicant’s tax return and anyone for whom the applicant provides 50% or more support.  The form I-944 asks for:
·        The name, date of birth, and relationship to the applicant of each member of the household
·        The education and occupational skills for an applicant who does not have an approved I-140; for applicants who do have an approved I-140, the applicant must provide the I-140 receipt number
·        The income of the applicant and all household members
·        A list of any assets held by household members that can be converted into cash within 12 months, e.g. checking and savings accounts, stocks and bonds, retirement accounts, etc.
·        A list of any liabilities or debts held by household members, e.g. mortgages, car loans, credit card debt, unpaid taxes, etc.
·        The credit report and credit score of all applicants
·        The terms and type of health insurance policy held by each applicant
·        The application, receipt, or certification of public benefits for each applicant, including enrollment, disenrollment, and withdrawing of public benefits

The adjudicating Officer will review all of the above listed information when making a determination as to whether the green card applicant is likely to become a public charge.  At this time, it is unclear if all of the items listed above will be required of all applicants, even when the applicant’s income meets a certain threshold or the applicant has guaranteed employment in the United States because of an approved I-140.

Conclusion

Policy experts forecast that this rule will likely be applied inconsistently, cause fewer legal immigrants to enter the United States, and cause further delays in the processing of immigration applications by the USCIS.  MU will send additional information once the immigration forms have been finalized and greater clarity is provided by the USCIS.

Wednesday, October 2, 2019

INCREASING SITE VISITS FOR STEM OPTs


The American Immigration Lawyers Association (AILA) has received reports of SEVP officers conducting site visits to confirm the details of students’ STEM OPT employment and that the Petitioner is in compliance with their attestations on the I-983.

Visits can be either random or based on a complaint. For random visits, SEVP officers have typically contacted the STEM OPT employee’s manager 1-2 days before the visit is to be conducted. For a complaint, there will likely be no notice given by the SEVP officer.

From reported visits, the visits generally last 1-2 hours at the STEM OPT worksite. According to the DHS’s website, the visits will address:

1.     How the salary of the STEM OPT employee is determined;


2.     Whether there are sufficient resources from the Petitioner to provide supervision and training of the employee; and

3.     Whether the Petitioner is maintaining an employer-employee relationship with the employee.


It is important to review your STEM OPT employee’s I-983 forms and ensure that the employer team (especially the manager listed on the I-983) and the employee are familiar with the details of employment and the training plan.

Monday, September 30, 2019

UPDATE ON THE FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT


After several weeks of contentious negotiations, a deal has been struck to preserve nurse immigration into the US through the Fairness for High-Skilled Immigrants Act (H.R. 1044).  The AAIHR, of which Musillo Unkenholt is the only law firm member, led the fight to preserve these visas.  The AAIHR issued this press release in which they thanked Senators Perdue (R-GA), Paul (R-KY),and Young (R-IN) who were instrumental in crafting the deal.

The deal is still subject to two hurdles:

1. Any Senator can block the deal.  While most Senators have signed off on the deal there may still be some Senators who are holding out.  Senator Durbin (D-IL) remains a block on the bill. In this video, Sen. Durbin explains his reasoning for holding out.

2. The deal is still subject to approval by President Trump, who is expected to sign the bill into law if it can get past the Senate.

If the two hurdles are not overcome, the status quo stays in place, which means 12-15-year delays for many EB-2 and EB-3 Indians.

If the bill goes through, the new law will:

First, over a three-year phase-in, eliminate the per-country cap on employment based green cards.  This would be great news for Indian-born immigrants, halving their retrogression to 7-8 years.

Second, preserve 4,400 visas for Schedule A occupations – Registered Nurses and Physical Therapists.  

Third, there will be additional burdens on H-1Bs in all industries.  The details of the additional H-1B rules are forthcoming.

Again, the bill is not law.  Negotiations remain ongoing between Sen Lee (R-UT), who is the Fairness Act’s champion, and Sen. Durbin.

Friday, September 27, 2019

H-4/ EAD RULE WILL CONTINUE UNTIL SPRING 2020 AT THE “EARLIEST”

In a filing with a federal judge, USCIS indicated that it has delayed the revocation of the H-4/EAD rule.  USCIS says that “the earliest possible publication date” of the revocation is spring 2020.  This is good news for H-4 /EAD holders. 

There are rumors that the USCIS has badly miscalculated the negative impact on the US economy, which is why the revocation of the rule has been ongoing for two years.  Rules of this type must be approved by the Office of Management and Budget, which likely has called into question USCIS’ calculations.

Even if a rule is published by USCIS, it will have to offer the rule to the public for notice and comment, a process that will likely receive much scrutiny and could further delay the Trump Administration’s attempts at revocation.

Monday, September 23, 2019

OCTOBER 2019 VISA BULLETIN: ANALYSIS


The Department of State has just issued the October 2019 Visa Bulletin. This is the first Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

October 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment-
based
All Other
CHINA
INDIA
PHILIPPINES
1st
22APR18
01NOV16
01JAN15
22APR18
2nd
C
01JAN15
12MAY09
C
3rd
C
01NOV15
01JAN09
15OCT17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

Employment-
based
All Other
CHINA
INDIA
PHILIPPINES 
1st
01JUL19
01SEP17
15MAR17
01JUL19
2nd
C
01AUG16
01JUL09 
C
3rd
C
01MAR17
01FEB10
C


MU Law Analysis (all references are to Table A unless noted)

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: The EB-2 and EB-3 inverted again, as EB-3 has a favorable priority date than EB-2.  Over the course of FY2020 we expect EB-3 to catch up to EB-2 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates have inverted.  We expect very little progress in either category, although EB-2 may move slightly quicker than EB-3 in future months.

Philippines: We find the implementation of the 15OCT17 priority date puzzling.  This is almost surely a too conservative projection by DOS.  MU expects that this date will rapidly move in the coming months, and could return to current in early 2020.



Wednesday, September 18, 2019

MUSILLO UNKENHOLT WELCOMES LINDA ASH AND ELIZA STONE

Musillo Unkenholt (MU) is pleased to welcome Linda Ash and Eliza Stone to the law firm.  Ash and Stone met more than a decade ago while working at a large regional law firm in Cincinnati.  In 2017, they formed Ash & Stone, LLP where they practiced primarily business-based immigration law. 

Born in Canada, Ash has a twenty-nine year legal career and has lived in Argentina and Iran, as well as Canada and the US.  Ash provides both foreign and domestic employers, across a wide range of industries, with immigration advice and expertise.  Ash is a graduate of the University of Arizona and Salmon P. Chase College of Law.  Stone started her practice at an established regional law firm before becoming in-house counsel for an international company and later a large university.  Stone provides employment immigration advice to clients of varying sizes.  Stone is fluent in both Polish and German and graduated from New York University and the University of Cincinnati College of Law.


MU recently celebrated its ten year anniversary.  MU attorneys practice almost exclusively employment-based immigration and the firm’s clients include large public and private companies as well as small start-up, entrepreneurial ventures. 

Monday, September 16, 2019

ANALYSIS OF CURRENT RFE TRENDS AND HOW TO GET YOUR CASE APPROVED

MU Law will be hosting a free webinar for our clients and friends on Wednesday November 13, 2019 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

Register Here

This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  
  
Webinar Agenda:
1.   H-1B issues
·       Specialty Occupation
·       Availability of Work
·       Right to Control
2.   I-140 Issues
·       Bona Fide Offer
·       Ability to Pay
3.   I-485 Issues
·       Maintenance of Status
o   F-1 to Green Card
o   H-1B to Green Card
4.   Q&A

PLEASE JOIN US!

Monday, September 9, 2019

US CITIZENSHIP AND IMMIGRATION SERVICE ANNOUNCES FEE FOR PRE-REGISTRATION FOR H-1BS


On September 4, 2019 the USCIS announced a new proposed rule that requires employers preparing to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration the employer submits to USCIS.  The USCIS is funded by fees collected for filings and plans to use the registration fees to cover the costs of implementing the new pre-registration system.

In January 2019 the USCIS introduced an electronic registration requirement for employers seeking to file H-1B cap-subject petitions.  Under the January 2019 rule, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then submit the actual H-1B petition.  

After considering public feedback, USCIS decided to suspend the electronic pre-registration requirement until the April 2020 cap season in order to complete user testing and ensure the system and process are fully functional.

Monday, August 19, 2019

US DEPARTMENT OF HOMELAND SECURITY ANNOUNCES NEW “PUBLIC CHARGE” RULE


On August 14, 2019 the Department of Homeland Security (DHS) announced a new “public charge” rule; this rule will go into effect on October 15, 2019.  Under a longstanding law and policy, if immigration authorities determine someone is “likely to become a public charge” the US can deny the applicant’s green card or other visa to the US.  A public charge is someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changes the standard by the DHS determines whether a foreign national is likely to become a public charge.


Under the previous policy, DHS examined whether an intending immigrant was primarily dependent on public benefits.  Under the new rule, immigration officers will examine whether immigrants are likely at any time to become a public charge, using a multi-factor test. 


Public benefits under the new rule include:
  1. Any federal, state, or local cash assistance, including:

    1.   Social Security Income (SSI)
    2.  Temporary Assistance for Needy Families (TANF)
    3.  Government programs for income maintenance often called “general assistance”

  1. Supplemental Nutrition Assistance Program (SNAP) also known as food stamps
  2. Section 8 Housing Assistance
  3. Medicaid, with certain exceptions
  4. Public Housing under Section 

The immigration officer will take into account a broad range of factors and consider all of the following when making a determination if the foreign national visa applicant is likely to become a pubic charge:
  1. Receipt of a public benefit for more than 12 months in the aggregate within a 36 month period
  2. Age
  3. Health
  4. Family status
  5. Education and skills
  6. Assets, resources, and financial status

This rule will apply to all applicants for any type of visa, though it is expected that the immigration officers will look most closely at those applying for a green card.  Employment-based visa applicants should be treated favorably because, by virtue of their employer-sponsor, they have guaranteed employment and income in the United States.  However, policy experts forecast that this rule will likely be applied inconsistently and cause fewer legal immigrants to enter the United States.


Thursday, August 15, 2019

SEPTEMBER 2019 VISA BULLETIN: ANALYSIS

The Department of State has just issued the September 2019 Visa Bulletin. This is the final Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin. 

September 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment-
based
All Other
CHINA
INDIA
PHILIPPINES
1st
01OCT17
01JAN14
U
01OCT17
2nd
01JAN18
01JAN17
08MAY09
01JAN18
3rd
01JUL16
01JAN14
01JUL05
01JUL16

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

Employment-
based
All Other
CHINA
INDIA
PHILIPPINES 
1st
01SEP18
01OCT17
01OCT17
01SEP18
2nd
C
01JUN17
01JUN09 
C
3rd
C
01JUN16
01APR10
C


MU Law Analysis (all references are to Table A unless noted)

As always happens in August and September, the dates have retrogressed, often making the numbers effectively unavailable.  This is common.  The USCIS and DOS are making sure to use all available visa numbers, without exceeding the legal quotas.

Numbers will once again be available for applicants beginning October 1, 2019 under the FY-2020 annual numerical limitations.  For October, the first month of fiscal year 2020, the DOS expects to return to return the final action dates to those which applied for July.  Click this link to see the July dates.