Tuesday, February 9, 2016

MARCH 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

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

March 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
2ndC01AUG1215OCT08CC
3rd01JAN1601JUN1315JUL0401OCT1515MAR08

MU Law Analysis

All:  The EB-2 has been current for many years.  The EB-3 remains positive, gaining 10 weeks this month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 progressed by five months. EB-3 has progressed almost two years in just the last few months.  This is great news for this category.  EB-2 continues to lag behind EB-3.  The DOS expects the EB-2 and EB-3 to re-balance at some point in the future.

India: EB-2 jumped again. Five months ago it was 01MAY05. This represents a three-plus year movement in just five months.  This trend may continue. EB-3 moved four weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to get into 2009 in the by this spring or 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

The All Other and Chinese dates moved ahead considerably.  The other countries' Dates of Filing chart did not materially change since the start of the Fiscal Year in October 2015. 

Wednesday, February 3, 2016

DOS ADDRESSES EB-3 PHILS RETROGRESSION

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

Notably he discusses the EB-3 Philippines and the rumors that 80% of the 28,000 pending Philippine EB-3 visas will never be used because those applicants have either already immigrated to the US or they have long abandoned their applications.

QUESTION:  Do the numbers reported on the Waiting List for EB-3 Philippines reflect actual visa demand for this category? It has been suggested by some that as many as 80% of the 28,102 individuals listed in the report will not pursue their visa applications as a result of the visa backlog and lack of priority date movement over the years. If in fact actual demand to date has been less than expected, are you considering adjusting the priority date cut-off for this category?
ANSWER:  Number use for EB-3 Philippines is at a fairly reasonable level for this point in the year. We have 5,000+ applicants which have already been reported to VO, and are only awaiting forward movement of the cut-off date. The cut-off date will continue to advance, but how quickly remains to be seen.

The "lag time" does not seem to have resulted in a lack of demand. The reason for the rapid movement of this date in FY 2015 was that we had worked through the eligible demand which was reported for overseas processing, and USCIS demand (approximately 950) was extremely low during the first four months of FY 2015. During the next three months, demand from USCIS exploded (approximately 3,000), perhaps due to a decreasing processing backlog.

Charlie addressed other categories too:

EB-2 India:  The recent aggressive forward movement of EB2 India is the result of less demand in the category than that which was previously anticipated.  But, recent discussions with USCIS have led him to believe that the rate of demand in the coming months will reduce the rate of cut-off date movement.

EB-2 Worldwide:  EB-2 Worldwide demand is low.

EB-2 and EB-3 China:  The EB-2 China Final Action Date will continue to lag behind EB-3 China.  At some point EB2-to-EB-3 “downgrades” may rebalance these categories.  In the meantime, both EB-2 and EB-3 China are expected to continue to advance in March.

Monday, February 1, 2016

H-1B TELECONFERENCE FEB 4, 2016

REMINDER: LAST CHANCE TO REGISTER IF YOU  HAVE NOT DONE SO ALREADY

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will 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, 2016.

H-1B Teleconference Agenda
  • H-1B Cap Basics and Projections
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?
  • Hot issues:  
    • CPT / OPT maintenance
    • NIV maintenance
    • Cap-gap for F-1s
    • H4 EAD rule
    • STEM OPT Lawsuit
    • Increased filing fees for 50/50 employers
  • Top 10 things H-1B employers can do to stay compliant
  • Legislative Update
    • DACA/DAPA to the Supreme Court
    • I-140 EAD
    • Presidential Election: What we can expect from President Trump
  • Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Wednesday, January 27, 2016

OPT STEM EXTENSIONS EXTENDED

The USCIS now has until May 10, 2016 to finish its review of the more than 50,000 public comments submitted in response to the new STEM OPT Extension regulations and to issue a new STEM Program.  Until May 10, 2016, the old OPT STEM extension program remains in effect. 

In August 2015 the US District Court for Washington, DC ruled that the USCIS STEM OPT Extension program was invalid because the USCIS had not followed the proper procedure when STEM Extension program was created.  Before creating a new program, the law requires that the USCIS must first give the public time to comment on the program proposal.  The USCIS did not allow the proper public comment period when creating the STEM Extension program.

In August 2015 the federal judge ruled to abolish the STEM Extension program, but the judge also found that abolishing the program immediately would cause a hardship to F-1 students currently on OPT.  The judge allowed the USCIS six months until February 2016 to re-create the program using the proper procedure.  The six month window was set to expire on February 12, 2016.

The USCIS re-issued the STEM Extension program last fall and received over 50,000 comments from the public.  In December 2015 the USCIS requested additional time to review the public comments.  The judge has now granted the USCIS an additional three months to complete its review of the public comments.  The USCIS has until May 10, 2016 to complete its review of the public comments and enact the new STEM Extension program.

Wednesday, January 20, 2016

H-1B TELECONFERENCE FEB 4, 2016

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will 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, 2016.

H-1B Teleconference Agenda
  • H-1B Cap Basics and Projections
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?
  • Hot issues:  
    • CPT / OPT maintenance
    • NIV maintenance
    • Cap-gap for F-1s
    • H4 EAD rule
    • STEM OPT Lawsuit
    • Increased filing fees for 50/50 employers
  • Top 10 things H-1B employers can do to stay compliant
  • Legislative Update
    • DACA/DAPA to the Supreme Court
    • I-140 EAD
    • Presidential Election: What we can expect from President Trump
  • Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Friday, January 15, 2016

USCIS TO ALLOW DUAL INTENT, 240-DAY WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

Starting February 16, 2016, the USCIS will make life much easier for H-1B1, CW-1 and E-3 visa status holders thanks to a new regulation that has just been posted to the Federal Register.  The original proposed regulation was published in April 2015.

The new regulation will grant extended work authorization to these visa status holders who timely file their visa status extension petitions.  These changes will bring these three categories into harmony with similar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dual intent will remove an unnecessary legal headache when these visa status holders apply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa status holders must be extremely careful when preparing their green card petitions or risk running afoul of the immigrant intent rule.  Strictly speaking, these visa status holders cannot intend to file for US Permanent Residency.

Granting extended work authorization is also a welcome for these visa status holders.  Under the current interpretation these workers were forced to stop working unless their visa status extension was approved prior to the expiration of the initial visa status.  When the new rule is effective, those in H-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency of their visa status extension petition, even if the extension petition is not approved before the expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visa categories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status for Singaporean and Chilean nationals.  The E-3 functions similarly for Australian nationals.  These visas were approved by Congress when trade deals were struck with these three countries.  The advantage of these visas is that they are not subject to the H-1B cap.  There are quotas for these categories, although none of the quotas have veer been reached.

Sunday, January 10, 2016

FEBRUARY 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

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

February 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
2ndC01MAR1201AUG08CC
3rd01OCT1501OCT1215JUN0401OCT1508JAN08

MU Law Analysis

All: These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 progressed by one month. EB-3 has progressed almost one year in just the last few months.  This is great news for this category.

India: EB-2 jumped again. Four months ago it was 01MAY05. This represents a three-plus year movement in just four months.  This trend may continue. EB-3 moved four weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months.  We expect it to get into 2009 in the by this spring or 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
2ndC01JAN1301JUL09CC
3rd01JAN1601OCT1301JUL0501JAN1601JAN10

MU Law Analysis

The Dates of Filing chart did not materially change from October or November 2015. This is not a surprise. The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin.

Our analysis is the same as described in our October 10, 2015 blog post.

Friday, January 8, 2016

8TH CIRCUIT GREATLY CURTAILS DOL INVESTIGATORY AUTHORITY IN LCA INVESTIGATIONS

The Greater Missouri Medical Pro-Care Providers H-1B case is the most noteworthy H-1B since the 2000 decision, Defesnor v. Meissner.  The latest decision in Greater Missouri greatly curtails the DOL’s investigative powers and significantly reduces liability concerns for H-1B employers.
                                                                 
The DOL has traditionally used any H-1B employees’ complaint to investigate a company’s entire H-1B program.  I have personally defended H-1B employers in about a dozen matters where the DOL has used this technique to extract significant fines from H-1B employers for technical alleged violations.  In most of these instances, the H-1B employer has paid off the DOL instead of spending considerable fees and time defending itself.  With this latest decision, this DOL method should stop.

The 8th Circuit held that the underlying Congressional statue, “expressly ties the [DOL’s} initial investigative authority to the complaint and those specific allegations.”  (Page 10 of the decision, linked above).  The DOL must have “reasonable cause” to extend the scope of an investigation. 

It is illustrative to understand what happened in Greater Missouri.  The H-1B employer, GMM, hired several Physical and Occupational Therapists.  In June 2006, one of the H-1B Therapists filed a Complaint that eventually found its way to the DOL.  In response to this Complaint the DOL open a company-wide investigation and requested documentation on every H-1B employee on GMM’s roster.  Based on this documentation, the DOL ordered GMM to pay $382,890 in back wages to H-1B employees.

The case meandered through the administrative courts for years.  The case found its way to the Administrative Review Board, which issued a decision in January 2014.  In that decision, the ARB confirmed that that the DOL’s investigative authority could include 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.”  This finding reduced the back wage fine to $106,786.   

A dissent by one of the three ARB judges opined that the DOL’s investigative authority was limited to just the Complainant’s allegations.  This dissent was referenced by the 8th Circuit in the most recent decision.

If this decision holds firm, the DOL’s investigative powers will be constrained to the matter at hand.

Wednesday, December 16, 2015

CONGRESS AGAIN RAISES USCIS FILING FEES FOR 50/50 EMPLOYERS

The H-1B and L-1 “50/50” filing fees are back and larger than ever.  Last night, the House Republican leadership posted the full text of the Consolidated Appropriations Bill of 2016.  The Act revives the additional H-1B and L-1  filing fees for “50/50 employers”.  A “50/50 employer is one has more than 50 employees , where more than 50 percent of the employees hold H-1B or L-1 status.  Upon the forthcoming enactment of this new Act, the new combined filing and fraud fees for 50/50 employers will be H-1B: $4,000 and L-1: $4,500.  This fee will apply to all H-1Bs and L-1s, even if it is an extension of status.  

ILW has a nice table of other immigration provisions that are included in the Act, such as H-2, Physicians, E-Verify, R-1, EB-5, and Visa Waivers.  Most of these are routine extensions of existing programs that had recently ended.

In 2010, Congress passed the original “50/50” increased filing fee rule.  PL 111-230 raised H-1B and L-1 filing fees for employers who have over 50 employees with more than 50% of these employees in H-1B or L-1 status.  H-1B petitions were assessed an additional $2,000 in filing fees.  L-1 petitioners were assessed $2,250 in additional filing fees.  PL 111-230 was originally to end in 2014, but was re-authorized until September 30, 2015.  It did sunset on September 30, 2015.  For the last three months, there has been no increased filing fee for 50/50 employers.

Thursday, December 10, 2015

JAN 2016 VISA BULLETIN AND ANALYSIS

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

January 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 born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01FEB12
01FEB08
C
C
3rd
01OCT15
01JUL12
15MAY04
01OCT15
01NOV07

MU Law Analysis

All: These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.
China: EB-2 did not change. EB-3 has progressed six months Nov 2015 Visa Bulletin, which was 01JAN12.
India: EB-2 jumped again. Three months ago it was 01MAY05. In Nov 2015's Visa Bulletin it was 01AUG06.  In December 2015 it was 01JUN07.  This trend may continue. EB-3 moved two weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead four months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months.


Dates of Filing

Applications with these priority dates may file their I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization


Employment-
Based
All Chargeability
Areas Except
Those Listed
CHINA-
mainland
born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01JAN13
01JUL09
C
C
3rd
01JAN16
01OCT13
01JUL05
01JAN16
01JAN10

MU Law Analysis

The Dates of Filing chart did not materially change from October or November 2015. This is not a surprise. The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin.

Our analysis is the same as described in our October 10, 2015 blog post.