NOVEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the November 2018 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2019.  This blog post analyzes this month's Visa Bulletin.

November 2018 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.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01APR17	01JUN16	01JUN16	01APR17
EB-2	C	15MAY15	26MAR09	C
EB-3	C	01JUN15	01JAN09	08JUN17

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.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	15JUN15	22MAY09	C
EB-3	C	08AUG15	01OCT09	01JUL17

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

All Other, Mexico: Unfortunately no movement. Movement should start again in the next month or two.

China: The Chinese dates barely moved in November. We expect the slow/no progress to be standard in the first part of FY 2019.

India: The Indian dates did not move in November. We expect the slow/no progress to be standard in the first part of FY 2019. After that we expect slow, but regular progressions.

Philippines: The EB-3 date moved up by week, which is a good sign, considering most other categories in this month’s Visa Bulletin did not progress. Over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, both in Tables A and B.

USCIS ISSUES GUIDANCE ON NEW NOTICE TO APPEAR (NTA) POLICY

The USCIS has backtracked from a proposed policy change that would have placed H-1B and other employment-based workers immediately into deportation processing after the denial of a petition.  USCIS has decided to only enforce this new policy for denials of:

• I-485, Adjustment of Status
• I-539, Application to Extend/Change Nonimmigrant Status (typically, H-4, F-1, and B-1/B-2).

Under the revised policy, USCIS will send special letters to denied applicants if their I-94 card is expired.  The special denial letter is designed to provide adequate notice to applicants that they should depart the US.  If the applicant does not timely depart the United States, USCIS may issue a Notice to Appear (NTA).  An NTA initiates deportation proceedings.  You can read more about the NTA policy on our earlier blog post.

USCIS will prioritize the issuance of an NTA in cases of:

• Criminal records
• Fraud or misrepresentation
• National security concern

The USCIS will continue to use prosecutorial discretion when issuing an NTA in these instances on a case-by-case basis.

WEBINAR: USCIS NEW POLICY MEMORANDUMS

Over the last six months, the USCIS has issued several new policy memorandums. Join us for a webinar recapping these new memos and recent trends in adjudications. The webinar will cover: 

• Denial Notices issued without an RFE/NOID

• Notice to Appear (NTA) issuance 

• OPT/F-1 updates (including unlawful presence and 3rd party work-sites on OPT)

• H-1B 3rd party work-site and itinerary memo

• Rescission of deference to previous approvals 

Should you have any questions regarding the event or our services, please do not hesitate to contact Chris Musillo. 

This webinar is for MU Law clients and friends of the firm. 

We look forward to speaking with you! 

LAWSUIT ALLEGING HUMAN TRAFFICKING OF H-1B NURSES ALLOWED TO PROCEED AS A CLASS ACTION

As reported in the New York Law Journal, A Federal Judge will allow a group of Filipino H-1B nurses to continue their lawsuit against Sentosa Care as a “certified class.”  At issue was whether the nurses had to pursue their claims individually or whether they could proceed in one class action lawsuit.  By allowing the case to continue as a class, the lawsuit could lead to greater damage awards against Sentosa Care since it is generally easier for plaintiffs to pursue litigation together.  The plaintiff’s lawyer says that 200 H-1B nurses could now bring their claims.

The judge laid out the case in her decision.  The substantive issue is whether Sentosa’s pursuit of a damage clause in the employment contractual clause rises to the standard of violating the Trafficking Victims Protection Act.  The employment agreement entitled Sentosa to $25,000 in liquidated damages if the nurses left Sentosa’s employment prior to fulfilling the three-year contract. 

The nurses allege two claims:

1. Because the nurses were not paid the contractual wage from the time that they began working, the employment agreements were breached.  Therefore, Sentosa’s pursuit of the $25,000 violates several provisions of the TVPA.
2. Even if the agreements were not breached, the $25,000 itself is so far above Sentosa’s actual damages that pursuit of the $25,000 violates several provisions of the TVPA.  The judge notes that there is some evidence that Sentosa only spent a few thousand dollars per nurse.

Sentosa’s employment and recruiting practices have been the subject of lengthy litigation.  We will follow the case and report back as we hear anything.

OCTOBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the October 2018 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2019.  This blog post analyzes this month's Visa Bulletin.  

The USCIS is allowing Adjustment of Status filings based off of Table B, Dates of Filing.  If you are physically in the US, you can file your I-485 on October 1, if your priority date is earlier than the date in Table B.

October 2018 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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01APR17	01JUN16	01JUN16	01APR17	01APR17
EB-2	C	01APR15	26MAR09	C	C
EB-3	C	01JUN15	01JAN09	C	01JUN17

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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18	01JUN18
EB-2	C	15JUN15	22MAY09	C	C
EB-3	C	08AUG15	01OCT09	C	01JUL17

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

All Other, Mexico:  EB2 and EB3 returned to current, as we expected.  They should stay current for most/all of FY2019.

China: The EB2 and EB3 dates moved into CY2015.  Our sense is that these dates will stay in 2015, slowly improving over this Fiscal Year.

India: These dates moved back into 2009, again as expected. We expect to steady progress in both categories in FY2019. 

Philippines: The fact that the EB-3 Final Action date stayed in 2017 is a terrific sign, indicating that there may be fewer immigrant visas in the pipeline than we had expected.  Over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, both in Tables A and B.

CHANGES FOR F-1 STUDENTS – ACCRUAL OF UNLAWFUL PRESENCE

On May 11, 2018, the USCIS issued a policy memorandum that changed the rules regarding unlawful presence for F-1 students.  Unlawful presence begins to accrue once a foreign national has stayed beyond the end date on his/her I-94 card.  Because F-1 I-94 cards do not have an end date, but show D/S (duration of status) as the term of stay, unlawful presence previously did not apply to F-1s. 

As of August 9, 2018, individuals in F, J, and M status who fail to maintain their status will start accruing unlawful presence on or after the date of one of the following events:

• The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while adjudicating the benefit request;

• The day after the student’s I-94 expires; 

• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), orders the student excluded, deported, or removed;

• The day after the student no longer pursues a course of study or authorized activity, or the day after the student engages in unauthorized activity (e.g. unauthorized employment); or

• The day after the student completes his/her course of study or program, including any authorized CPT or OPT plus any authorized grace period.

Individuals who have accrued more than 180 days of unlawful presence are generally subject to a 3 year bar of re-entry to the US.  Individuals who accrue more than 365 days of unlawful presence are generally subject to a 10 year bar of re-entry to the US.

Things to keep in mind with regard to this new rule:

• This new rule went into effect on August 9, 2018.  Unlawful presence will accrue from August 9, 2018 or the date the student engages in unlawful activity forward.  No formal notice will be given to the student as to when unlawful presence begins to accrue.  If a student believes he or she may have engaged in unlawful activity, the student should contact their DSO or an immigration attorney immediately for advice.

• The timely filing of an application for reinstatement stops the accrual of unlawful presence, and, if the application for reinstatement is approved, cures any unlawful presence in the student’s record.  Applications for reinstatement must be filed within 5 months of the date the student first engaged in unlawful activity.

• There is no accrual of unlawful presence during the cap-gap period or when a change of status from F, M, or J to another status has been filed, unless the change of status request is denied.  Unlawful presence will begin to accrue from the date of the denial of the change of status going forward.  If the change of status is approved, the USCIS will not reopen the previous F, M, or J.  For example, if an F-1 student engaged in unlawful activity in 2016 while on F-1 status but has now changed status to H-1B, the USCIS will not reexamine the 2016 F-1. 

USCIS WILL NO LONGER ACCEPT PPS FOR H-1Bs EXCEPT EXTENSIONS, CAP EXEMPT INSTITUTIONS

In an unexpected move (although all-too-common for an increasingly erratic agency), the USCIS will no longer accept Premium Processing Service (PPS) for all H-1Bs, except for H-1B extensions with the same employer or H-1Bs for cap-exempt institutions, such as Universities or research organizations.

Effective September 11, 2018, PPS will not be available for H-1B cap petitions and H-1B amendments.  The ban on PPS will continue until February 19, 2019. 

The justification for the ban on PPS is to reduce overall H-1B processing times.  

If you are asking yourself how eliminating a fee-based premium processing service will reduce processing times, you are not alone.  The PPS is supposed to pay for itself.  This is yet another example of an agency that cannot get out of its own way.

USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD PARTY WORKSITES IS NOW PERMITTED

USCIS has updated its Optional Practical Training Extension for STEM Students (STEM OPT) webpage indicating STEM OPT participants may engage in training experience at third party worksites as long as the all of the training obligations are met.  The employer must maintain a bona fide employer/employee relationship with the student.  Previously the USCIS had said that STEM OPTs could not work at third-party locations. 

Any material changes in the student’s employment must be reported to the Designated School Official (DSO) within 5-10 business days.  These changes include any modifications to the training listed on the I-983, a change in the employer’s name or address, and termination of the student’s employment.

The USCIS’ backtracking was likely a result of a lawsuit filed in federal court.  That lawsuit, ITServe Alliance v. Nielsen, was filed by Attorney Jon Wasden.  Jon, who is a friend of MU Law, previously worked for the USCIS’ AAO Office.  He has filed several lawsuits on behalf of H-1B employees and H-1B employers.  If you have an egregious denial decision and would like to have Jon review your case, please contact him or contact MU and we an put you in touch with him.

DO NOT LET YOUR VISA SCREEN EXPIRE

The USCIS requires Healthcare Worker Certificates, sometimes called Visa Screens are required for foreign-born healthcare workers who will be employed in the US in the following professions:

• ·         Nurses (including LPNs, vocational nurses, and RNs);
• ·         Physical Therapists;
• ·         Occupational Therapists;
• ·         Speech-Language Pathologists and Audiologists;
• ·         Medical Technologists or Clinical Laboratory Scientists;
• ·         Medical Technicians or Clinical Laboratory Technicians; and
• ·         Physician Assistants.

A valid Visa Screen must be provided to the USCIS when the healthcare worker applies for entrance to the US, change of status, extension of status, or adjustment of status (a green card application).  In light of the USCIS’s new policies regarding the issuance of Requests for Evidence (RFE), Notice of Intent to Deny (NOID), and Notices to Appear (NTA), healthcare workers are advised to not let their Visa Screens expire. 

In the past, if an H-1B extension was filed without a valid Visa Screen, the USCIS would generally send an RFE to request it.  Under the new USCIS new policies, the lack of a valid Visa Screen would be grounds for immediate denial.  Further, with the new NTA policy, if the healthcare worker’s I-94 has expired at the time of the denial, the worker could be put into deportation proceedings immediately.

MU strongly advises healthcare workers to timely renew their Visa Screens so that they can continue to maintain their immigration status and their ability to work in the US.

SEPTEMBER 2018 VISA BULLETIN: DON'T PANIC! ALL WILL BE FIXED ON OCT 1

 DON'T PANIC ABOUT THIS VISA BULLETIN!

We invite you to read our FAQ on August and September Visa Bulletins

The Department of State has just issued the September 2018 Visa Bulletin.  This is the final Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.  

September 2018 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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	01JUN16	01JAN12	01JAN12	01JUN16	01JUN16
EB-2	01JAN13	01JAN13	01JAN07	01JAN13	01JAN13
EB-3	01NOV16	01JUL14	01JAN03	01NOV16	01NOV16

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.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	C	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

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

This Visa Bulletin retrogressed all categories several years.  This is the Department of State's signal that all employment-based visas have been used for this fiscal year.  This is normal and happen at the end of each fiscal year.  The new fiscal year starts on October 1, 2018.  This Visa Bulletin includes a note confirming that "the implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August."

Accordingly, things will return to normal on October 1, 2018.