Saturday, April 25, 2015

CGFNS, ICN LAUNCH RESEARCH WEBSITE

The International Centre on Nurse Migration (ICNM) was created by the Commission on Graduates of Foreign Nursing Schools (CGFNS) International and the International Council of Nurses (ICN). ICNM develops and promotes research, policy and information on global nurse migration. 

The ICMN has launched a website aimed at being a significant resource for research and information.  The website is www.intlnursemigration.org.  From their press release:

The new website features a bold, user-friendly web interface to easily access news, resources, and ICNM publications. eSource, a new website feature, offers a platform for new and experienced researchers to share articles, reports, papers or presentations on migration related issues with other researchers and the public.

Tuesday, April 21, 2015

DOS: WE HOPE TO PROGRESS PHILS EB-3 IN THE SUMMER

AILA has discussed the Philippine EB-3 retrogression with Charlie Oppenheim, who is the Department of State’s Chief of the Visa Control and Reporting Division.  Mr. Oppenheim is the person at DOS who writes and produces the Visa Bulletin.

While he cannot speculate as to future dates, he “hopes to advance the cut-off date throughout the summer.”  This statement is consistent with MU Law’s April 14, 2015 blog posting on this issue.

USCIS demand for Philippine EB-3 visa numbers has increased.  The DOS says that 2,000 Philippine EB-3 visa numbers were requested in the six week period leading to the publication of the may Visa Bulletin, which is a massive increase from Fiscal Year 2014 (Oct 1, 2013 – Sept 30, 2014).  FY2014 saw a total of 3,275 Philippine EB-3 immigrant visas used.

MU Law expects that the Philippine EB-3 number will return to 2014 or even 2015 in the forthcoming months.  However if Philippine EB-3 demand continues the Philippine EB-3 number may eventually retrogress negatively, although it is too early to specifically estimate Visa Bulletin dates in calendar year 2016.

Monday, April 20, 2015

MU LAW H-1B TELECONFERENCE APRIL 22, 2015

MU Law will be holding a free teleconference for our clients on April 22,
2015 at 2PM ET / 11AM PT.  Interested clients should email MU’s Annalisa
Smith, who can register you for the teleconference.

The agenda will include:

1.       H-1B cap update.

2.       Analysis of the new H-1B ruling, Matter of Simeio Solutions, which
mandates a new or amended H-1B petition whenever there is a change in the
employment location.

3.       What the new Visa Bulletin means for the Philippines EB-3
category.

4.       Hot topics in PERM adjudications.

5.       Legislative update.

Wednesday, April 15, 2015

BREAKING: MANILA EMBASSY TO EXPEDITE EB3 IMMIGRANT VISA APPOINTMENTS


The US Embassy in Manila has waived the requirement for making an appointment for a visa interview for those who are affected by the retrogression (priority dates on or after July 01, 2007) and have never been interviewed. Once applicants have all the required documents and have completed the medical examinations at St. Luke's Extension Clinic, they may come to the Embassy's Immigrant Visa Check-in Counter on any workday between 7:30 a.m. and 8:30 a.m. from April 15, 2015 through April 28, 2015 for the visa interview.

More on their webpage:

MAY 2015 VISA BULLETIN

The Department of State has just released the May 2015 Visa BulletinThis is the eighth Visa Bulletin of the 2015 Fiscal Year.  

The big news was the massive retrogression of the Philippines EB-3.  This was completely unexpected.  MU Law believes that the Philippine EB-3 retrogression is a temporary situation that should correct itself in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.

The news was much better for the other categories.  India EB-2 has progressed to April 15, 2008, although India EB-3 only moved up one week to January 15, 2004.  All Other EB-3 moved into January 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved to June 1, 2012 and EB-3 is now at May 1, 2011.  Both of these dates continue to progress positively.

Employment- Based
All Other
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01JUN1215APR08CC
3rd01JAN1501MAY1115JAN0401JAN1501JUL07

Tuesday, April 14, 2015

VISA BULLETIN: PHILIPPINES EB-3 RETROGRESSED TO 2007: WHAT DOES THIS MEAN?

The May 2015 Visa Bulletin, released April 13, 2015, contained a major surprise for Philippines EB-3.  That visa number was retrogressed to July 2007.  While this was unwelcome news, MU Law has checked with several sources and it is our sense is that this retrogression is a temporary blip in immigrant visa processing for Philippines EB-3 applicants.  Because there are very few Philippine EB-3 applications between 2009-2013, MU Law believes that the Philippines EB-3 date will return to at least 2014, although this may not happen until Fiscal Year 2016 begins in October 2015.

Philippine EB-3 applicants have claimed many older priority dates from the high demand era of 2007-2009.  The Department of State had progressed the Philippine EB-3 number over the last year in an effort to spur these older applicants into filing their immigrant visa applications.  The retrogression is recognition that this effort to spur older immigrant visa applicants has worked.  The DOS now has had to tap on the breaks in order to process these older immigrant visa applications. 

MU Law expects that the Philippines EB-3 number will remain in 2007 for the June 2015 Visa Bulletin.  Because July is the start of the fourth and final fiscal quarter, the July 2015 Visa Bulletin may include a progression of the Philippine EB-3 date if overall demand for immigrant visas is low.  It is common for the fourth fiscal quarter to include dramatic improvements in visa bulletin dates.  For example, the Philippines EB-3 number advanced from November 07 (May 2014 Visa Bulletin) to January 09 (July 2014 Visa Bulletin) to April 2011 (September 2014 Visa Bulletin).

With the start of the next fiscal year (FY2016) in October 2015, the DOS should progress the Philippine EB-3 date to 2014.  The DOS will then steadily increase the date throughout FY2016, perhaps even making the Philippines EB-3 date current early in FY2016.

Monday, April 13, 2015

H-1B CAP REACHED AT 233,000

U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received nearly 233,000 H-1B petitions during the April 1-7 filing period.  This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption.  This is the largest number of H-1B cap-subject petitions ever received.  About 36% of the H-1Bs will be accepted and 64% will be returned. 
Earlier today, USCIS used a computer-generated random selection process, or “H-1B lottery,” to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. 
It is expected that it will take until mid-May before the H-1B lottery winners and losers are notified.  USCIS will begin premium processing for H-1B cap cases no later than May 11, 2015. 

Thursday, April 9, 2015

NEW H-1B NOW REQUIRED WHEN AN H-1B WORKER CHANGES LOCATION

In a dramatic change ignoring 20 years of past precedent, the
USCIS' Administrative Appeals Office has decided that a new H-1B
petition must be filed every time an H-1B employee changes worksites, if
the new worksite is outside of the original metropolitan area.

Effective immediately all MU Law client-employers must file new or amended
H-1B petitions to protect these H-1B workers.  This will dramatically and
negatively change the process for many H-1B employers, especially those
employers in the staffing and consulting industries.  These industries
should expect to spend additional time and cost preparing and filing
previously unnecessary H-1B amendment petitions.

The AAO decision is titled, Matter of Simeio Solutions, LLC.

Tuesday, April 7, 2015

MU'S SCHNEIDER NOMINATED FOR PROFESSIONALISM AWARD

Congratulations! MU's Maria Schneider has been nominated for the Cincinnati Bar Association's Young Lawyer Section Professionalism Award. This award honors the YLS member who best demonstrates respect toward colleagues, his or her clients, and the judiciary. The recipient of this award is an individual who reveres the legal process and all who are involved in it and encourages others to do likewise.

Friday, April 3, 2015

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

The USCIS has proposed regulations that will allow H-1B1, CW-1, and E-3 visa holders to have dual intent.  The proposed regulation will also 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 finalized, 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.

The CW-1 is transitional visa used for foreign nationals seeking to enter the Commonwealth of the Northern Marianas Islands.  The CW-1 visa was set to sunset in 2014, but recent legislation extends the transitional visa until December 31, 2019.

Healthcare workers who work in occupations that require at least a Bachelor degree may qualify for these visas.  Typically we see these visas used by Physical Therapists, Occupational Therapists, Doctors, Pharmacists, and Speech Language Pathologists.

Tuesday, March 31, 2015

CGFNS LAUNCHES E-COACH

One of internationally-trained Physical Therapists biggest headaches is equating their foreign college degrees to US college degrees.  With the aim of curing this headache, CGFNS has recently launched e-Coach Learning Service.   

The new program helps internationally educated health professionals by providing the resources necessary to help meet the requirements as specified in the assessment tool by outlining the courses needed to remediate the educational deficiencies identified on their Coursework Tool Evaluation and Summary Statement.

Coursework Tools include the Federation of State Boards of Physical Therapy (FSBPT) Coursework Tool for Foreign-Educated Physical Therapists and Physical Therapist Assistants (CWT) and the CGFNS Education Comparability Tool (ECT).

The service is available through CGFNS’ webpage.

Friday, March 27, 2015

SENATE BUDGET BILL PASSES WITHOUT IMMIGRATION AMENDMENTS

Senators and Congressmen have a long history of attaching pet amendments to budget and funding bills.  They know that these bills are “must pass” legislation, meaning that Congress will certainly pass a budget or else the entire government would shut down.  Since budget and funding bills are must pass, prized amendments get approved without going through the usual route, working their way through subcommittees and full committees.  This year several odd amendments were offered.

Sen. Hatch (R-UT) offered an amendment that sought to allow the conference committee to raise the H-1B cap, increase STEM visas, raise the green card cap, and increase the H-1B fee.  Sen. Grassley (R-IA) sought the exact opposite.  He hoped to restrict H-1B usage.  Neither amendment was successful. 

Tuesday, March 24, 2015

H-1B CAP NOTES: PREMIUM PROCESSING, NUMBER OF FILINGS, ETC.

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Tuesday April 7, 2015.  Below are some key points to keep in mind about this year’s H-1B cap:

-The USCIS makes no accommodation for delays caused by couriers.  Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 1, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) may not start until May 11, 2015, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.  Last year PPS began on April 28.

-The USCIS expects that more H-1B petitions will be received this year than last year.  At the recent AILA Manila chapter conference, a USCIS official said that he expected more than 200,000 H-1B cap-subject filings.  There were 172,500 cap-subject H-1Bs in 2014 (FY 2015).

-Last year it was mid-May before most H-1B lottery winners and losers found out about the outcome of their lottery selection.  Since the volume is expected to be greater in 2015, it may not be until June until lottery winners and losers know their outcome.

Thursday, March 19, 2015

SEN. GRASSLEY HATES THE H-1B? NO, HE LOVES THE H-1B!

The Senate is controlled by Republicans who are odds at how to handle the real and perceived problems with the H-1B visa.  One group of Senators, led by Sen. Orin Hatch (R-UT), recognizes the obvious: that the H-1B visa quota is an enormous hindrance to the US economy.  Sen. Hatch’s solution is to increase the quota while maintaining protections for US workers.  Sen. Hatch’s bill, the I-Squared bill, has support from Senators in both parties, with co-sponsorship from eleven different Senators.  It is the rare piece of legislation that has support from a diverse group of Senators. 

This sensible coalition recognizes that an increased H-1B visa cap is necessary.  There is no real evidence that the H-1B drives down US workers’ wages.  

The other side of the debate is spearheaded by Sen. Grassley (R-IA), with Sen. Jeff Sessions (R-AL) riding alongside.  Neither Senator is actually interested in getting legislation passed, as evidenced by the fact that neither has actually introduced any legislation.  They are only interested in rabble rousing.  Earlier this week, they held a hearing on the H-1B visa, which amounted to nothing. 

Sen. Grassley's plan seems to be able to force amendments to the I-Squared, whose support is growing.  He has done this many times in the past.  These amendments will only increase the regulatory and legislative headaches that lawful staffing companies already face.  The companies that take advantage of loose enforcement will continue to do so.  

It is in the Senator's best interest to keep the H-1B bill alive and well.  How else can he tell the protectionists how bad it is?  

Monday, March 16, 2015

HISTORICAL H-1B USAGE

This year’s H-1B filing date of April 1, 2015 is coming fast.  MU Law predicts that the USCIS may see 200,000 H-1Bs filed this year, more than double the Congressional cap of 85,000.  When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as slots available..

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists,Occupational TherapistsSpeech Language Therapists, and some Registered Nursing positions.

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.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad

Past H-1B Demand:

Year:
H-1B Cap Numbers:
Date H-1B Cap Reached:
H-1B 2003 (FY 2004)
65,000
October 1, 2003
H-1B 2004 (FY 2005)
65,000
October 1, 2004
H-1B 2005 (FY 2006)
85,000
August 10, 2005
H-1B 2006 (FY 2007)
85,000
May 26, 2006
H-1B 2007 (FY 2008)
85,000
April 3, 2007
H-1B 2008 (FY 2009)
85,000
April 7, 2008
H-1B 2009 (FY 2010)
85,000
December 21, 2009
H-1B 2010 (FY 2011)
85,000
January 25, 2011
H-1B 2011 (FY 2012)
85,000
November 22, 2011
H-1B 2012 (FY 2013)
85,000
June 11, 2012
H-1B 2013 (FY 2014)
85,000
April 5, 2013
H-1B 2014 (FY 2015)
85,000
April 1, 2014
H-1B 2015 (FY 2016)
85,000
April 1, 2015 (expected)

Wednesday, March 11, 2015

APRIL 2015 VISA BULLETIN

The Department of State has just released the April 2015 Visa Bulletin. This is the seventh Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014. There is once again very positive news for many immigrant visa categories.
The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date. These are all now at October 2014, which is the closest to current they have been in many years. This is yet another large progression in dates.
India EB-2 climbed forward steadily as well. It has moved to September 2007, representing a 2 and a half year increase in the last three months. 


Chinese numbers righted themselves. For two years the Chinese EB-3 has been more favorable than Chinese EB-2. With this Visa Bulletin, Chinese EB-2 is now the better date.
Employment- Based
All Chargeability Areas Except Those Listed
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC01APR1101SEP07CC
3rd01OCT1401JAN1108JAN0401OCT1401OCT14

Wednesday, March 4, 2015

USCIS H-1 NURSE MEMO REISSUED: ANOTHER MISSED OPPORTUNITY

In July 2014, the USCIS published and released a Memorandum aimed at clarifying the USCIS’ position on the approvability of H-1B Registered Nurses.  The Memorandum updated the long-standing 2002 Johnny Williams USCIS Memorandum on the same subject.  The July 2014 Memorandum did not provide any substantive guidance beyond than the 2002 Williams Memorandum.   It paid lip service to the idea that USCIS officers should remember that, “there are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation”.

Oddly, the July 2014 Memorandum disappeared from the USCIS’ website shortly after publication.  Some practitioners hoped that that USCIS had reconsidered the Memorandum and would issue a Memorandum that provided concrete instruction and examples.

Unfortunately, the USCIS has finally republished the Memorandum.  It is identical to the July 2014 Memorandum, except the date of the Memorandum is now February 18, 2015.

An article that MU Law posted in July 2014 includes a link to the July 2014 Memorandum and an analysis of the missed opportunity.  Rather than restate the arguments that we made in that article, we will just point you there.

Monday, March 2, 2015

H-4 EAD FAQ

Starting May 26, 2105, certain H-4 spouses of H-1B holders can file for an Employment Authorization Document (EAD).  The full regulation has just been published. 

Musillo Unkenholt has had many questions from clients and friends of the firm.  We have published these in this FAQ.

Can I file before May 26, 2015?
No.  The USCIS will not accept EAD applications until May 26, 2015.

How long will it take the USCIS to process the EAD Application?
Traditionally EAD Applications take 90-120 days until approval.

Can I work upon the filing of the EAD Application?
No.  The EAD must be approved?

Who qualifies for the new H-4 EAD card?
Certain H-4 spouses may file for the new H-4 EAD.  Children who hold H-4 status are ineligible for the EAD.

Which H-4 spouses may file for an EAD?
In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first set forth in Section 106 of AC21.  The H-1B worker must either:

A.  Hold an approved I-140, Petition for Alien Worker.  The approved I-140 does not need to be from his present employer; or
B.  Have a priority date that is at least one year old.  A priority date can be established by the filing of a PERM Application or a Form I-140.

May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?
No.  The USCIS looks to the H-1B worker to meet A or B, above.  It is irrelevant if the H-4 meets A or B.

Are there any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?
No.  There are no such limitations.  You can work for any employer, at any rate (above minimum wage), and in any occupation.

What should I do if I want to file an H-4 EAD?
EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process.  If you would like MU Law to help, please contact us.

Tuesday, February 24, 2015

H-4 EAD RULE IS EFFECTIVE MAY 26

USCIS has just announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.

Wednesday, February 18, 2015

NON-IMMIGRANT MAINTENANCE OF STATUS: F-1 & PERIODS OF AUTHORIZED EMPLOYMENT

Generally, all persons in a non-immigrant classification are required to maintain their immigration status for the duration of their stay in the U.S. This issue is of particular importance as we approach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrant status must demonstrate compliance and maintain status at the time of the H-1B filing. Failure to maintain the status can cause a denial in the prospective employee’s H-1B petition.

More recently, the USCIS has narrowly focused on F-1 students and particularly whether the student maintained status during any period(s) of authorized employment. The authorized periods of employment may include any work performed while engaged in Optional Practical Training (OPT) or Curricular Practical Training (CPT).

There are 4 primary characteristics that serve as evidence of the student’s maintenance of status while engaged in OPT/CPT:  
  1. The student was enrolled full-time each semester;
  2. The student was engaged in full-time employment while on OPT/CPT (or part-time work if so designated on the SEVIS Form I-20);
  3. The CPT was an integral part of the student’s degree program; and  
  4.  The student engaged in CPT work after completing 1 year of academic studies. 
In their discretion, the USCIS can request for additional clarification of the student’s academic and employment history. And ultimately the agency can issue a denial of the H-1B petition when the evidence provided deviates from the above mentioned characteristics.