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.

SEPTEBER 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.

USCIS CREATES NEW NTA POLICY

On June 28, 2018 the USCIS issued a memo regarding Notices to Appear (NTA) in a wider range of cases.  On July 30, 2018, the USCIS indicated this memo’s implementation would be delayed until further guidance regarding its administration can be issued.

Under the new memo, USCIS Officers are now mandated to issue (NTAs for cases where the individual is removable because there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the US.  An NTA initiates deportation proceedings and instructs the foreign national to appear before an Immigration Judge.  Even if issuance of the NTA is erroneous, there is a five year ban to re-entering the US if the foreign national departs the US while deportation proceedings are on-going.  NTAs will be sent to the employee’s last known address and not to the H-1B attorney.

Unlawful presence accrues if the previous I-94 card has expired from the date of denial of the new immigration petition forward.  For example, an H-1B worker is considered unlawfully present when the request for an H-1B extension is denied and the prior H-1B has already expired.

o   180 days to 364 days of unlawful presence results in 3 year bar of return to US

o   365 days+ results in 10 year bar of return to the US

This would most commonly apply to cases where the foreign national’s I-94 has already expired and their extension case denied.  For example: the employee’s I-94 expires on May 1; extension filed February 1, but is pending for 9 months until November.  In November the H-1B extension is denied.  The employee now has an expired I-94 card and is deportable.

Appealing the H-1B denial is generally not advised as the Appeals Office has a 90%+ rate of upholding the USCIS denials and a pending appeal does not stop accrual of unlawful presence or protect the worker from deportation. 

MU recommends the following in light of this new policy:

o   File extension petitions as early as possible

o   Use premium processing service to ensure a quick decision

o   Employees who are porting from one H-1B employer to the next may want to wait until the new H-1B case is approved to resign and begin work with the new employer

o   F-1 to H-1B applicants should maintain their underlying OPT, including STEM OPT, until H-1B approval

o   Those applying for green card through adjustment of status (AOS) should maintain their underlying status until AOS is approved

o   Foreign nationals should keep their address up-to-date with USCIS, even when leaving the US

Finally, this policy is expected take the focus of USCIS from adjudicating petitions and to create lengthier delays.  MU will alert clients once the memo has been implemented.

USCIS ISSUES NEW MEMO ON RFE AND NOID ISSUANCE

On July 13, 2018 the USCIS issued a memo indicates USCIS adjudicators now have full discretion to deny applications, petitions, and requests without first issuing an Request for Evidence (RFE) or Notice of Intent to Deny (NOID), when appropriate. 

Applicants must include all required initial evidence, as listed in operating procedures, form instructions, or regulations with their immigration petition or application.  In some cases a second RFE or NOID may be issued.  Reuters reports RFE and NOID issuance is up significantly in the last year.

Apart from RFEs, Officers have the discretion to validate assertions or corroborate evidence and information submitted with an immigration application by consulting USCIS or other governmental files, systems, and databases, or by obtaining publically available information that is readily accessible. 

It is unclear how strictly this new policy will be enforced. MU recommends employers work to get all documentation for a case, including end-client documentation, upfront in the initial filing and advises employers to file extension cases as early as possible.  MU encourages employers to closely review all template language in support letters and immigration forms as well as on the employer’s website and other publicly available information about the employer.

USCIS NTA MEMORANDUM IMPLEMENTATION DELAYED

On July 30, the USCIS announced that it will delay the implementation of a recent memo regarding the issuance of Notices To Appear (NTAs) to foreign national who fall out of status when their immigration petition is denied.  The issuance of an NTA initiates deportation proceedings.

On June 28, 2018 the USCIS issued a new policy memorandum which instructed USCIS Officers to initiate deportation proceedings for those foreign nationals’ whose immigration petition was denied after their I-94 card had already expired.  Generally, when the USCIS creates a new policy the USCIS delays implementation of the policy until a guidance memo can be issued.  The June 28, 2018 memo did not give a date specific on which the policy would be implemented, meaning it would be implemented immediately.

Today's announcement indicates the new NTA policy not be implemented until the USCIS guidance is issued.  The announcement also confirms that USCIS is not currently initiating deportation proceedings for those whose immigration petitions are denied after their I-94 cards expire.

For more information on this new policy please join us on Wednesday, August 1, for a teleconference on this new policy and other updates from the USCIS: REGISTER

MU TELECONFERENCE: USCIS NEW POLICIES UPDATE

The USCIS has recently issued new policies regarding Notices to Appear (NTAs), Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).
 ______________________________________

Please join MU Law for a teleconference regarding these topics of new policy.
 

REGISTER HERE

The agenda for the call is as follows: 

• Under this new guidance, when will the USCIS issue an NTA and initiate deportation proceedings?
• When are foreign nationals “unlawfully present” in the US and what are the consequences?
• What if I do not receive the NTA or leave the US once my immigration application is denied?
• When will the USCIS issue an RFE?  A NOID?  A denial? 
• What initial evidence is required for an immigration application?
• Can a second RFE or NOID be issued?

______________________________________

This teleconference is free for MU Law clients and friends of the firm. We look forward to speaking with you! 

AUGUST 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the August 2018 Visa Bulletin.  This is the eleventh Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.  The August and September Visa Bulletins always are a little unusual.  We invite you to read our FAQ on these Visa Bulletin.  

August 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	01MAY16	01JAN12	01JAN12	01MAY16	01MAY16
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JUL14	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	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)

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future. The EB-1 retrogression is temporary and is because of the reasons listed on the above-linked FAQ.

China (mainland-born):  China EB-3 (Chart A) moved favorably by 18 months.  This move was done to spur filings in this category before the end of the fiscal year.

India:  As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018.  EB-3 continued its steady progress, improving by to months.  India EB-3 should continue to steady progress into FY 2019.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 improved by 6 months, which is terrific, but probably temporary.  The DOS is trying to encourage filings in this category before the end of the fiscal year.  The EB-1 retrogression is of no consequence, and is simply reflective of the fact that all countries' EB-1 demand was higher than expected in FY2018. It will be Current in October 2018.

TELECONFERENCE: STEM OPT AND THIRD-PARTY WORK-SITES

The USCIS has recently issued two new interpretations on the issue of STEM OPTs working at third-party client work-sites.  These interpretations have dramatic implications for those who continue to work at third-party client sites after August 9, 2018.
 ______________________________________

Please join MU Law for a teleconference on this issue.  The teleconference will be July 11, 2018 at 3PM ET.

Topics on the call will include:

• STEM OPT v. non-STEM OPT
• Examination of the current rules and the new rules.
• USCIS interpretation of a third-party client site.
• Unlawful presence v. Failure to Maintain Status

REGISTER HERE

The teleconference is free for MU Law clients and friends of the firm. We look forward to speaking with you!

CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?

Because of two recent USCIS interpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPT workers do not work at third-party worksites under their SETM OPT work authorization until the USCIS issues better and clearer guidance on the issue. 

Working and training at third-party worksites is probably legal.  However, by working at the third-party worksite the STEM OPT trainee puts himself at risk for enormous negative immigration consequences, including a ten-year bar from entering or living in the United States.

USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION

Earlier this year, and without any warning or notice, the USCIS changed its webpage to include this key change:

the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

The USCIS’ justification for the third-party worksite prohibition is, apparently, because ICE (Immigration Customs Enforcement) would lack the authority to investigate at the third-party worksite. 

Curiously, ICE has not produced any guidance on this point.  ICE likely would be surprised to learn that they do not have the authority to investigate a worksite where it believed immigration fraud was being committed.

The website change alone is probably not good law.  There has been no regulatory change.  There has been no notice and comment period, something required for regulatory change.  The “ICE lacks investigative authority” justification for the prohibition against third-party worksites is weak.

If the only thing that USCIS had done was updated their webpage, then MU Law’s position might be that STEM workers could continue to work at third-party worksites, provided that the other qualifications of the program were being met, however, this is not the only change for F-1 students.

F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAIN STATUS

A brand new USCIS policy, effective August 9, 2018, says that F-1 students including STEM OPTs will now accrue “unlawful presence” “the day after he or she engages in an unauthorized activity.”  Accordingly, after August 9, 2018, the USCIS is expected to find that STEM OPTs working at third-party worksites are engaging in “unauthorized activity” and are therefore “unlawfully present”.

Even worse, a USCIS official can retroactively find that an F-1 student engaged in “unauthorized activity”.  A number of leading university administrators have made this point directly to USCIS Director James Cissna.

This is a massive change in long-standing USCIS policy.  Under the prior interpretation, an F-1 student or OPT did not accrue unlawful presence until an immigration judge said so.  Engaging in “unauthorized activity” meant that an F-1 worker “failed to maintain status,” which is a lesser finding.

The distinction between “failing to maintain status” and “unlawful presence” is enormous:

• When someone fails to “maintain status” they must immediately leave the US but can ordinarily immediately reenter the US. 
• When someone is “unlawfully present” for more than 180 days, they must immediately leave the US and are barred from reentering the US for 3 years.  When someone is “unlawfully present” for more than 365 days, they must immediately leave the US and are barred from reentering the US for 10 years. 

Consider this hypothetical scenario:

August 9, 2018 – STEM OPT continues to work at a third-party worksite

April 1, 2019 – STEM OPT worker files an H-1B cap petition

May 1, 2019 – STEM OPT worker’s H-1B cap cases is selected in the H-1B lottery

August 10, 2019 – STEM OPT worker receives an RFE from USCIS asking for proof that he has only engaged in authorized activity.

September 20, 2019 -  H-1B is denied.  USCIS finds that STEM OPT worker’s third-party work was “unauthorized activity”.  USCIS also finds that the STEM OPT worker was “unlawfully present” from August 9, 2018 until September 20, 2019, a period of more than 365 days.  Consequently, the STEM OPT worker must immediately leave the US and cannot reenter the US for 10 years.

CONCLUSION

At this time, MU Law recommends that STEM OPT workers are not placed at third party worksites unless comprehensive analysis is done regarding the viability of the assignment.  STEM OPT workers at third party worksites run the risk of 3 and 10 year bars from reentry into the US.  It is our hope that USCIS provides greatly clarity on these points and engages the public on the issue, rather than creating law by fiat.

JULY 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

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

July 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	C	01JAN12	01JAN12	C	C
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JAN13	01NOV08	C	01JAN17

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	01JAN12	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)

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  As often happens as we get closer to the end of the fiscal year, each categories moves with a higher variance than is usual.  We expect that China EB-1 and EB-3 are essentially fully used, which means that there will be no numbers until after October 1, 2018.  On the other hand, the China EB-2 number progressed about 6 months, reflecting than "downgrade" demand that has occurred in the last several years. 

India:  As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018.  EB-2 and EB-3 continued their steady progress.  Rumors are flying around the internet about a massive progression of EB-3.  We expect steady progressions for Indian EB-3, reflecting lower demand for these visas in 2008-09.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same.  As with China EB-1 and EB-3, and India EB-1, this probably means no forward progression until October 1, 2018, when the new fiscal year begins.  There is a minimal chance of a small progression in the next few months.