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.

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.

H-1B AMENDMENTS REQUIRED BY JAN 15, 2016

H-1B employers are reminded of the USCIS’ revised Final Guidance in the Simeio Solutions decision. Although the decision was not to be applied retroactively, H-1B amendments still must be filed in certain instances:

Date of H-1B employee's move	Action
On or before April 9, 2015	No amended H-1B is needed.
April 9 - August 19, 2015	Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015	Must file an amended H-1B once LCA is certified.

Accordingly, MU Law advises that if an employee moved between April 9 – August 19, 2015, an H-1B Amendment MUST be filed before January 15, 2016.

The revised Final Guidance reconfirmed that an amended H-1B petition is NOT required if the geographical move is within an “area of intended employment.”  An “area of intended employment” is generally the same as a Metropolitan Statistical Area.  Likewise, an amended H-1B petition is NOT required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration.

NCLEX NUMBERS LEVELING AFTER YEARS OF DECLINE

The latest NCLEX Statistics show that the decline in internationally-educated nurses taking the NCLEX examination has abated.  Through the third quarter of 2015, 16,685 first time internationally-educated nurses have taken the NCLEX.  That is up slightly  from 2014 when 15,207 first time internationally-educated nurses had taken the NCLEX through the third quarter. 

The pass rates of first time NCLEX internationally-educated nurses are rising slightly too.  In 2014 28.8% of first time internationally-educated nurses passed the exam.  In 2015, that has risen to 31.5%.  All told, about 4,500 first time internationally-educated nurses are annually taking and passing the exam.  Another 2,000-2,500 or so repeat test takers are also annually passing the exam.  Together, almost 7,000 internationally-educated nurses are annually taking and passing the exam.

These numbers are considerably lower than the peak years of last decade.  In 2006, 20,907 internationally educated RNs passed the NCLEX exam. In 2007, the volume jumped; 22,827 internationally educated nurses passed the NCLEX exam. With the onset of retrogression, 2008 saw a slight decline; 18,905 internationally educated RNs passed the exam.

NEARLY TWO-THIRDS OF BABY BOOMER NURSES CONSIDERING RETIREMENT

AMN Healthcare, one of the largest healthcare staffing companies in the US, has recently issued a survey that shows that almost two out of every three baby boomer nurses are contemplating recruitment.  A summary of the survey is on the Staffing Industry Analyst’s webpage.

The main take-away:

Of those nurses over 54 who are considering retirement, 62% plan to retire within the next three years. Additionally, 21% of nurses over age 54 said they will switch to part time work.

Paralleling this massive downturn in US healthcare workers is an expected boom in America’s demand for healthcare services.  The number of uninsured has dropped by millions since the passage of the Affordable Car Act (Obamacare).  Foreign labor must be part of this answer.  Unfortunately the current immigration scheme makes it very difficult to navigate a reasonable strategy.

SEN. GRASSLEY RE-INTRODUCES RESTRICTIVE H-1B BILL

Sens. Grassley (R-IA) and Durbin (D-IL) have reproposed a bill aimed at curbing H-1B usage.  The bill creates an H-1B system that greatly expands the regulatory environment surrounding H-1B visas.  Sen. Grassley's bill makes a number of changes to the H-1B system.

Sen. Grassley believes that the H-1B visa is used to replace US workers.  He has long cited a 2008 USCIS Report as evidence of fraud in the H-1B program.  To date, exactly zero prosecutions have resulted from this flimsy report. 

Sen. Grassley proposed bill sets forth a system where employers would have to register and re-register with various government agencies.  It would limit certain employers from hiring H-1B workers and increase enforcement. 

Sen. Grassley’s bill will surely restrict H-1B workers.  It is not clear that it will help US workers.  Any credible study points out that the H-1B usage mirrors the US employment rate.  The Economist has picked up on this finding.  A better approach is to ask why US workers no longer move for better opportunities, since most H-1B employer’s value H-1B workers geographical flexibility. 

Source: https://www.census.gov/hhes/migration/data/cps/historical/Figure%20A-1.2.png

ANALYSIS OF THE DECEMBER 2015 VISA BULLETIN

The Department of State has just issued the December 2015 Visa Bulletin. Here 
is MU Law's analysis of this latest Visa Bulletin.

December 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01JUN07	C	C
3rd	01SEP15	15APR12	22APR04	01SEP15	01AUG07

MU Law Analysis
All: No change from Nov 2015 Visa Bulletin, other than a one month improvement in EB-3.
China: EB-2 did not change. EB-3 progressed a few months from Nov 2015 Visa Bulletin, which was 01JAN12.
India: EB-2 jumped again. Two months ago it was 01MAY05. In Nov 2015's Visa Bulletin it was 01AUG06. This trend may continue. EB-3 continued its steady but slow progress.
Mexico: One month gain in EB-3.
Philippines: EB-3 moved ahead six weeks. MU Law believes that Philippines EB-3 will steadily move forward in the coming months. 


Dates of Filing

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	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

The Dates of Filing chart did not 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 our explain in our October 10, 2015 blog post.

USCIS E-FILING: HOW TO WASTE A BILLION DOLLARS

Today’s Washington Post outlines the USCIS’ attempts to move out of the paper age and into the electronic age.  After 10 years and a $1 billion, the USCIS has one form on-line, the I-90, which is used to renew a Green Card.  For those unfamiliar with the Form I-90, it is comparable to a driver’s license renewal form.  Ninety-nine other forms remain only available via paper filing. 

The project was originally supposed to be completed by 2013 at a budget of a half-billion dollars.  The USCIS now expects the program to be on-line in 2019 at a cost of $3.1 billion, although if history is any guide it will be years beyond that at a even greater costs.

Part of the problem is the “gotcha” nature of the forms themselves, which is indicative of a tone-deaf USCIS.  The forms often ask irrelevant and unnecessary questions, aimed presumably at tripping up users. 

Instead of focusing on the e-filing initiative, the USCIS chooses to waste time and resources.  For instance, the Simeio Solutions decision in April adds tens of thousands of petitions to the USCIS without any legal necessity.  The entire goal of the decision seems to be to make life difficult for H-1B workers who switch job locations.  There is no evidence that any legitimate policy goal was achieved by the decision.  If anything the decision and the later multiple USCIS Memos that attempted to clarify the decision,  are contrary to President Obama’s attempts to modernize US immigration policy and align it with the real world.

A good program management team would start with the essential questions before building out questions that are not core to the adjudication of the process.  A good program management team would engage users of the forms – immigrants, companies, immigration attorneys. 

Until these stakeholders are regularly engaged, skeptics will continue to criticize.  Until the administration makes it a priority to hold USCIS officials accountable for aimless policy and bloated budgets, the USCIS will continue its bumbling nature.   

SIXTEEN HOUSE REPS ASK DHS AND DOS FOR ANSWERS ON VISAGATE

Earlier this week, sixteen Congressional House representatives sent a letter to Sec. Jeh Johnson (DHS) and Sec. John Kerry (DOS) for answers related to September’s bumbled visa bulletin roll-out that resulted in a last minute revised Visa Bulletin, just days before the October 1 live date. 

This blog produced several articles on the series of events, which has been dubbed “Visa Gate” on Twitter.

Sept. 9 - NEW VISA BULLETIN ALLOWS EARLY FILING OF I-485s

Sept. 16 - MORE NEWS AND ANALYSIS ON THE NEW VISA BULLETIN

Sept 26 - REVISED VISA BULLETIN REVEALS TONE DEAF USCIS

Oct 10 - IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The House Member’s letter asks for the estimated number of applicants who were impacted by the last minute revised Visa Bulletin. 

Going further, they ask for DHS to consider providing EAD cards and allowing portability to those with approved I-140s.  Both concepts were recently endorsed by AILA.

HEALTHCARE STAFFING EXPECTED TO GROW BY 17% IN 2016

Staffing Industry Analysts US Staffing Industry Forecast predicts that US healthcare staffing will grow by 17% in 2016.  All four healthcare staffing sub-segments: -travel nursing, per diem nursing, locum tenens and allied health, showed double digit growth in 2015.

Reasons for the increase in staffing are many, including tightening US labor supply and Obamacare allowing previously uninsured patients to avail themselves of healthcare services.  More details on the report are accessible on their webpage.

MU Law has seen greatly increased demand for foreign-trained nurses, and Physical and Occupational Therapists in 2015, confirming this study's conclusions.

A PRIMER ON HOW AN EMPLOYER MIGHT WIN AN H-2B CASE FOR CAREGIVERS

The H-2B visa is a visa used for temporary or seasonal workers.  As BALCA explained in a case published earlier this week, In the matter of: Absolute Home Care, the H-2B is not a flexible visa.  The H-2B is not a viable option for healthcare employers seeking to fill long term staffing shortages.  An H-2B can only be used to fill staffing shortages, such as a one-time occurrence, seasonal need, peakload need or intermittent need.

In the matter of: Absolute Home Care the employer, Absolute Home Care, asked the DOL to certify that it had a need for twenty Caregivers for nine months, from October 2015 – June 2016.  In support of its claim, Absolute Home Care, provided the DOL with evidence that it traditionally had more clients in the prior winter (January – March 2014), than in the summer months. 

This argument this did not convince the BALCA judge for at least two reasons.  First, the evidence was that the need was for three winter months, not the nine months requested in the Application.  Second, Absolute Home Care asked for 20 Caregivers without documenting a single client contract substantiating the need for the period between October 2015 – June 2016. 

One bright spot is that the judge’s opinion allows the reader to “reverse engineer” how an H-2B might be approvable.  A successful case could be made if the employer can show past practice evinces a seasonal need, along with specific forward-looking contracts detailing a temporary need for the workers.

USCIS TO PUBLISH ITS OWN VISA BULLETIN

USCIS has just announced that it will publish its own Visa Bulletin Dates for Filing Visa Applications (Chart B).  The USCIS’ Dates for Filing Visa Applications will be used in order to determine if immigrant visa applicants can file Adjustment of Status Applications. 

USCIS expects that this chart will be published approximately one week after the publication of the Department of State’s Visa Bulletin.  The November 2015 is expected to be published shortly.

The Department of State’s Application Final Action Date (Chart A) chart will be used to determine when individuals may file their adjustment of status applications.

IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The Department of State has just issued the November 2015 Visa Bulletin.  The new revised Visa Bulletin had a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3.   We have a detailed analysis of the Visa Bulletin at the end of this blog post.

The Department of State now publishes two Employment-based Visa Bulletin charts each month: (1) Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:

• Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
• Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
• Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
• Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.

November 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01AUG06	C	C
3rd	15AUG15	01JAN12	01APR04	15AUG15	15JUN07

MU Law Analysis

All: No change from Oct 2015 Visa Bulletin
China: Both EB-2 and EB-3 progressed a few months from Oct 2015 Visa Bulletin
India: EB-2 jumped from 01MAY05.  This trend may continue.  EB-3 continued its steady but slow progress.
Mexico: No change from Oct 2015 Visa Bulletin
Philippines: EB-3 jumped ahead six months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months. 

Dates of Filing

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	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

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

The Plaintiffs lost their bid for a Temporary Restraining Order.  If the Plaintiffs were successful, then the USCIS and DOS would have been forced by the judge to revert back to the original September 2015 Visa Bulletin.

The Dates of Filing chart will not change until one of three things happen.  First, the Plaintiffs could be successful in their lawsuit.  However the lawsuit will take many months.  Witnesses will have to be deposed and documents will have to be shared.  Our sense is that the earliest that the lawsuit could be complete is early 2016.

Second, the Plaintiffs and the USCIS / DOS could settle their lawsuit. Similarly, the USCIS / DOS could respond to public and private pressure to change the Dates of Filing.  Several Congressional Representatives have issued statements to the agencies' expressing their frustration with these agencies' haphazard approach to immigration benefits.  

AILA has been working behind the scenes to lobby the agencies for an accurate Dates of Filing chart.  There is a sense among immigration attorneys, MU Law included, that the agencies do not really have a firm grasp of the volume of immigrant visa numbers.  Our evidence for this claim is the seemingly random dates listed on visa bulletins.  The pressure being exerted on the agencies may force the agencies to truly do their job and accurately project Visa Bulletin dates.

Thirdly, the numbers may compel movement. This third path may be the most realistic.  

This is most likely in the Philippine EB-3 category.  As we have seen with the publication of the November Visa Bulletin, the Philippine EB-3 Final Action date jumped ahead six months to June 2007.  This implies that the DOS does not truly know what the demand is for Philippine EB-3 visas.

But we know what the demand is.  MU Law has a very large volume of healthcare-based immigrant visa clients and we know most of heaviest users of healthcare-based immigrant visas and their attorneys.  These clients and friends claim a large portion of the Philippine EB-3 visas.  

Our read is that most (not all) of the Philippine EB-3 priority date recaptures from 2004-2008 have already happened.  We also know that very few Philippine EB-3 immigrant visas were filed between 2009 and 2012. In other words, once the DOS moves the Philippine EB-3 date to 2009, it will have to quickly move that date to 2013.  
Our prediction is that the immigrant visa volume dictates that the DOS will progress the Philippine EB-3 Dates of Filing number in the first half of 2016 and certainly no later than next summer.