NEW YORK STATE WILL REQUIRE BACHELORS FOR NURSES

New York State is the first state in the US to require a Bachelors of Science in Nursing for all nurses.  The BSN must be obtained within 10 years of practice, starting with nurses first licensed in New York in Summer 2019.  All currently-licensed New York State nurses are grandfathered into the current licensing systems and do not have to obtain BSNs.

This new educational requirement may allow foreign nurses who apply for nursing licenses in the US to apply for the H-1B visa.  The H-1B is normally of limited value to foreign nurses because the USCIS often denies H-1B RN petitions.  However, with the new BSN requirement, the USCIS may approve H-1B petitions filed on behalf of foreign-educated nurses.  It remains to be seen how the USCIS updates its policy in light of the updated New York State licensing requirement.

TRUMP TO ELIMINATE EADs FOR H-4 SPOUSES

In yet another anti-business immigration measure, the Trump demonstration has begun taking steps to eliminate H-4 EADs.  Some outlets are reporting that the H-4 EAD rule could be rescinded as soon as February 2018.  News reports have been predicting the end of H-4 EADs for several months.

Now, the Administration has published notice that it intends to “modify” the program.  Most expect that the modification will be the elimination of the H-4 EAD program. 

This rule is yet another example that Pres. Trump is not just against illegal immigration, he is against any immigration.  There is no rational basis to make this change, other than as a gift to his xenophobic followers.  He would eliminate hundreds of thousands of taxpayers at a time when the federal deficit is expected to increase by $1.4 trillion.

Traditionally when programs like this end, the government allows those with valid EADs to continue to be able to work until the end of the EAD period.  Accordingly, MU Law advise those H-4 spouses who are eligible for EADs to file immediately.  Likewise, if your H-4 EAD is set to expire in the next few months, you should immediately file an EAD extension. 

VISA BULLETIN JANUARY 2018: ANALYSIS AND PREDICTIONS

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

January 2018 Visa Bulletin

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	C	C	C	C
EB-2	C	01AUG13	22NOV08	C	C
EB-3	C	15APR14	01NOV06	C	15FEB16

MU Law Analysis

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):  Both China EB-2 and EB-3 progressed about one month.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.

India:  Both India EB-2 and EB-3 progressed about two weeks, which is about what we expect that the monthly progressions will be in FY 2018.  MU suspects that EB-3 will not progress at any notable rate until at least the India EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date moved one month, after not moving in the December 2017 Visa Bulletin.  Because of increased demand will expect slower progressions in the FY2018, progressing no more than 1-2 months per Visa Bulletin.

NEW DHS SECRETARY COMES WITH BAGGAGE

In July, President Trump elevated Gen. Kelly from his initial cabinet position, Secretary of Homeland Security, to Chief of Staff.  Despite plenty of time for golfing, the President then waited three months to nominate a new Secretary of Homeland Security.  Finally, in October, the President nominated Kirstjen M. Nielsen for the position. 

The Department of Homeland Security oversees, among other sub-agencies, USCIS.  USCIS, of course, reviews nonimmigrant and immigrant visa petitions.

Earlier this week, the Senate confirmed the nomination by the smallest margin ever for the position, 62 to 37.  For comparison’s sake, Gen. Kelly received 88 votes in favor and only 11 against, when he was approved by the Senate earlier this year.

Ms. Nielsen reportedly comes with baggage.  She is caught up in an ethics complaint.  The allegation is that she used a private consultant to help guide her through the Senate review process.  The consultant, in turn, will now be seeking millions in federal contracts from Ms. Nielsen.

She reportedly was also not highly regarded at her prior two positions in the White House and at DHS. Axios said that on Ms. Nielsen,

“Nielsen is not a beloved figure at DHS; just as she wasn't inside the White House. She has a very sharp-elbowed approach to doing business and doesn't command anywhere near the respect that her predecessor, Kelly, did, according to more than half a dozen sources who've worked with her.”

FOREIGN NCLEX RATES CONTINUE TO RISE

The latest 2017 NCLEX statistics show that foreign-trained nurses are taking and passing NCLEX at the highest rates since the peak years of 2006-2007.  Almost 10,000 foreign-trained nurses have taken and passed the NCLEX in 2017.  US NCLEX pass numbers have been ticking upward since 2014, although at a much smaller rate than foreign-trained nurses

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.

Year	US	Fgn
2014	149,980	4,555
2015	154,955	5,382
2016	154,749	8,332
2017	157,000	9,200

Note that the 2017 statistics are MU Law generated estimates.  The 2017 results will not be published until January.

VISA BULLETIN PROCESSING TIMES COULD SPEED UP IN 2018

NVC and Consular Processing green card processing times could speed up in 2018 due to an unintended consequence of the Trump administration’s new requirement that all I-485, Adjustment of Status candidates must now undergo a green card interview . 

Why? The USCIS will take longer to process Adjustments of Status in 2018 because of the new interview requirement.  Because of the elongated I-485 processing times, USCIS will be able to process fewer green card approvals in 2018.  As a result, more green card numbers will spill over into Consular Process queue.

We often see this phenomenon in the summer months, as we approach the end of a fiscal year.  The DOS accelerates the Visa Bulletin in order to ensure that it uses the full allotment of employment-based visa numbers.  We explained this phenomenon in a 2016 MU Law FAQ.

Unsurprisingly, Charlie Oppenheim, the DOS’ guru on immigrant visa number allocation, recognized that the new I-485 interview rule may delay I485 green cards during his October 2017 AILA “Check In With Charlie”.

MEMBER QUESTION #1: When does USCIS request and allocate a visa number to an individual case?

ANSWER #1: Per the agreed upon policy, USCIS will only request an immigrant visa number once all required processing is 100% complete, including conducting any required interview, receipt of a complete medical exam, all required clearances, etc.

MEMBER QUESTION #2: Could you please confirm that a visa number that gets allocated to each applicant who has successfully passed the interview should be preserved for that applicant unless the applicant becomes ineligible for permanent residence?

ANSWER #2: With regard to USCIS, though this is relatively rare, there are occasions in which USCIS requests a number, but before the adjustment of status application is fully processed, subsequent derogatory information comes to the officer’s attention which impacts eligibility. As another example, USCIS recently sent RFEs out on numerous EB-3 India cases which had been preadjudicated in anticipation that the final action date for this category would advance during August and September. Visa numbers were provided for those cases with the expectation that the applicants would respond to the RFEs in time to be approved before the end of the fiscal year. Unfortunately, hundreds of individuals did not respond in a timely manner, and USCIS determined that it would be unable to complete adjudication of those cases prior to September 30, 2017. Those cases were returned to “pending demand” status, and the visa numbers for those cases became available to other cases within FY 2017. USCIS was provided with a new number for each case once the requested evidence was received and successfully processed. As a result of new visa number requests for several hundred of these cases, the final action date for EB-3 India is not currently advancing. For consular processing cases, a visa number is allocated to a consular post for use during the month in which the visa applicant is originally scheduled for a visa interview. If the visa is not used during that month (i.e. the case is placed in administrative processing), the number is returned to the Visa Office at the end of the month.

SF CHRONICLE: TRUMP TO ELIMINATE H-4 EADs

The San Francisco Chronicle reports that the Trump administration plans to rescind the H-4 EAD rule.  The H-4 EAD rule, which has existed for 2+ years, allows H-4 spouses of H-1B workers to work, provided that the H-1B primary spouse has completed the I-140 stage of the green card process.  The Chronicle reports that 41,526 H-4 spouses earned work authorization through the program in the fiscal year through September 2016.

The recession of the H-4 EAD rule is being pressed because of a lawsuit that questions whether USCIS ever had the legal authority to create the 2015 enabling rule.  In a Motion made during the lawsuit, the administration hinted at the fact that they are in the processes of drafting a new rule that would rescind the H-4 EAD rule.

A new rule however would have to go through the notice-and-comment period, which would delay the implementation of the rule.  Notice and comment periods can take anywhere from a few months, to many years. 

DECEMBER 2017 VISA BULLETIN: ANALYSIS

The Department of State has just issued the December 2017 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

December 2017 Visa Bulletin

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	C	C	C	C
EB-2	C	01JUL13	01NOV08	C	C
EB-3	C	08MAR14	15OCT06	C	15JAN16

MU Law Analysis

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):  Both China EB-2 and EB-3 progressed about one month.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.

India:  India EB-2 progressed about one month, which is what we except the monthly progressions will be in FY 2018.  Unfortunately, India EB-3 did not move.  Recently, the DOS said that EB-3's progression will be "limited."  MU suspects that EB-3 will not progress at any notable rate until at least the India EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in analysis.

Philippines: The Philippine EB-3 date stayed in January 2016, reflecting the fact that demand for the Philippine EB-3s recommenced heavy demand in 2016.  This increased demand will be the cause for slower progressions in the FY2018, progressing no more than 1-2 months per Visa Bulletin.

REUTERS: NURSING CRISIS STRAINS U.S. HOSPITALS

Reuters reports that health care facilities all across the US are facing dire nurse staffing shortages, which are leading to increased expenses related to staffing.  They interviewed over 20 hospitals across the US and found nearly universal concerns tied to a lack of nurses.  

Reuters cites a Staffing Industry Analysts report that says that the “cost nationwide for travel nurses alone nearly doubled over three years to $4.8 billion in 2017”.  For instance, “university-affiliated J.W. Ruby Memorial Hospital in Morgantown is spending $10.4 million in 2017 compared with $3.6 million a year earlier to hire and retain nurses.”

The article highlights the classic reason for the shortage, which have long been on the industry’s radar.  For instance:

Baby Boom Generation Demand.  The US Baby Boom generation, those born 1946-1964, has reached an age where they will increasingly demand nursing services.  As The Atlantic points out:

Today, there are more Americans over the age of 65 than at any other time in U.S. history. Between 2010 and 2030, the population of senior citizens will increase by 75 percent to 69 million, meaning one in five Americans will be a senior citizen; in 2050, an estimated 88.5 million people in the U.S. will be aged 65 and older.

Aging Nursing Workforce.  Out of the 3 million US nurses, one million are over age 50 and will be expected to retire in the next 10-15 years.

Few Nurse Educators.  Nursing Ph.D. programs have been unable to attract nursing faculty.  These nurses Ph.D’s have traditionally made up large numbers of nursing school faculty.  Part of the reason for this is that a Bachelor nursing graduate is usually offered a job at graduation, thus reducing that graduate’s incentive to seek out graduate nursing education.  Without a dramatic increase in nurse faculty, it will be impossible for the US to supply enough nurses to meet the demand.

Distribution Challenges.  Some of the American nursing problem stems from the lack of mobility ion the nursing force.  Nurses are often unwilling to leave their hometowns for jobs in rural areas or high-nurse demand areas, even if those positions pay better.

Lack of Foreign-Nurses.  Because of a terribly though-out US immigration policy, it takes a nurse from the Philippines many years to legally obtain a visa, in spite of the nursing shortage.  The Philippines has traditionally been the greatest supplier of US nurses.  The story is even worse for India, which would certainly be able to supply the US with many nurses if it did not take 10 years for a fully-qualified nurse to obtain a US visa.  As a result of the lack of US nursing visa options, foreign-trained nurses have declined sitting for the US licensing exams. 

DIVERSITY VISA LOTTERY PROGRAM

After the tragic terrorist attack in New York, President Trump recommended eliminating the Diversity Visa Lottery program (DV Lottery).  Many of our blog readers have likely not heard of the DV Lottery.  Here are some key points about the DV Lottery:

• The DV Lottery was established by an Act of Congress in 1990.  Fifty Thousand green cards are allocated to the DV Lottery and are reserved for countries with a historically low rate of immigration to the US. The DV Lottery countries are identified each year by the US Department of State.
• DV Lottery applicants must register on-line for the lottery.  There is no fee to register or apply for the DV Lottery.
• In addition to being a native of one of the named countries, DV Lottery applicants must meet certain educational or skilled work requirements. 
• In 2015, which is the last year for which we have statistics, close to 14.5 million people around the world applied for the 50,000 DV Lotter green cards.
• Those who are selected will be notified through the Entrant Status Check, E-DV Website.  DV Lottery winners are never notified by hard copy mail or email.  There is widespread fraud around the DV Lottery program, so applicants must ensure that their notification of lottery winning is in fact from the US Department of State.
• DV Lottery winners must still meet all eligibility requirements before obtaining a green card.  The requirements include the same security screening undergone by family-based and employment-based green card applicants before obtaining a green card. 
• In addition to the standard screening, all DV Lottery winners must appear for an in-person interview with an Immigration of Embassy Officer.
• If processing of the DV Lottery winner’s application cannot be completed before the end of the US government’s fiscal year, due to background checks, resource limitations, or other issues, the DV Lottery winner's application will be denied, and the opportunity to obtain the green card will be lost.

CISSNA’S FIRST ACT: CONTINUE ASSAULT ON BUSINESS IMMIGRATION

New USCIS Director L. Francis Cissna’s first act as USCIS Director is to rescind a 2004 Memorandum that had eased burdens on nonimmigrant extension petitions.  In its place, USCIS issued a Memorandum instructing officers to revisit all prior findings of fact and law in extension petitions.  USCIS says that this new policy is, “more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers.”

Accordingly, employers and employees should expect delays in the adjudication of extension petitions. This new Memorandum will be used as authority for increased RFE and denials. 

AFTER LONG DELAYS CISSNA SWORN IN AS DIRECTOR OF USCIS; NIELSEN NOMINATED FOR DHS

To little fanfare, L. Francis Cissna was finally sworn in as Director of the USCIS.  Pres. Trump originally nominated Cissna in April.  There was little news coming out of Washington explaining the delay in Cissna’s appointment.  The lack of information led to plenty of speculation about the delay.  Cissna served in various capacities within the Department of Homeland Security, most recently as the Director, Immigration Policy within the DHS Office of Policy,

Delayed appointments are nothing new for this administration.  The DHS has been without a leader since Secy. Kelly became Pres. Trump’s Chief of Staff in July.  The administration finally nominated Kirstjen Nielsen earlier in October, more than two months since Secy. Kelly’s promotion.

Axios did not have favorable reporting on Ms. Nielsen,

“Nielsen is not a beloved figure at DHS; just as she wasn't inside the White House. She has a very sharp-elbowed approach to doing business and doesn't command anywhere near the respect that her predecessor, Kelly, did, according to more than half a dozen sources who've worked with her.”

NOVEMBER 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the November 2017 Visa Bulletin.  This is the second Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

November 2017 Visa Bulletin

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	C	C	C	C
EB-2	C	15JUN13	08OCT08	C	C
EB-3	C	01FEB14	15OCT06	C	15JAN16

MU Law Analysis

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):  China EB-1 reverted to Current.  Our sense is that it will stay Current for much of the fiscal year.  Both China EB-2 and EB-3 progressed one month.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.

India:  India EB-2 progressed about one month, which is what we except the monthly progressions will be in FY 2018.  Unfortunately, India EB-3 did not move.  A few weeks ago, the DOS said that EB-3's progression will be "limited."  MU suspects that EB-3 will not progress at any notable rate until at least the India EB-3 date moves past the Visa Gate date of August 2007.

Mexico: Mirrors All Other in analysis.

Philippines:  The Philippine EB-3 number essentially cleaned out all of the 2010 through 2015 EB-3 visas in FY2017.  The demand for Philippines EB-3 numbers increased dramatically in 2016-17.  This increased demand will be the cause for slower progressions in the FY2018, probably progressing 1-2 months per Visa Bulletin.

NEW STREAMLINED PROCESS TO OBTAIN SIMULTANEOUS EAD AND SSN

Effective October 1, 2017, the US Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA) have instituted a new information-sharing partnership allowing foreign nationals to apply for an EAD (Employment Authorization Document) and a SSN (Social Security Number) at one time and on one form.

This should be helpful for those lawfully in the US and who are eligible for work authorization via an EAD, but who have previously not had social security numbers.  H-4/EAD, L-1/EADs, and spouses and children applying for I-485/EADs are some examples of people who will benefit from this new process.

EADs are documentation of the individual’s work authorization and can be shown to employers to satisfy the I-9 and e-verify tests.  EADs permit the foreign national to work for a finite period of time, listed on the EAD card.  SSNs are used to report wages to the government and to determine the individual’s eligibility for certain government benefits. 

Under the previous system, foreign nationals had to first obtain an EAD and then go to their local SSA Office and apply for an SSN separately.  The revised EAD Application (Form I-765) allows applicants to apply for an SSN or a replacement SSN card without visiting the SSA Office.  The USCIS will now transmit the SSN data to the SSA for processing.  Applicants will receive their EAD from the USCIS and their SSN card from the SSA within two weeks.

USCIS WILL RESUME PPS FOR ALL H-1B PETITIONS ON OCTOBER 3

AILA is reporting that USCIS will resume Premium Processing Service (PPS) for H-1B petitions, effective October 3.  Accordingly, PPS will again be allowed for H-1B transfers, amendments, and extensions.

USCIS previously restarted PPS for H-1B cap-subject petitions on September 18.  Earlier this summer, USCIS resumed PPS for H-1Bs for cap-exempt employers (e.g. research entities and universities), and H-1Bs for doctors.

USCIS allows an upgrade for previously filed a petition.  If you have filed an H-1B petition and would like your petitioned upgraded to PPS, please contact your MU attorney or staff member.

PRESIDENT TRUMP’S NEWEST TRAVEL BAN

On Sunday, September 24, 2017, President Trump made a Presidential Proclamation  regarding enhanced vetting for visa applicants from certain countries.  The Proclamation has been called the “Travel Ban 3.0” by reporters and commentators.  The Proclamation will go into effect on October 18, 2017 at 12:01 AM ET.

The Proclamation puts restrictions on the issuance of visas to nationals of certain countries until those countries meet the US government’s requirements for information sharing about visa applicants.  No visas will be revoked under the Proclamation.  The affected countries and visa types are:

·         No B1/B2 tourist visas will be issued to nationals of:

o   Yemen

o   Chad

o   Libya

·         B1/B2 tourist visas will not be issued Venezuelan government officials and their family members.

·         No visas will be issued to nationals of Iran, with the exception of F, M, and J visas which will only be issued after extra scrutiny. 

·         No immigrant visas (green cards) will be issued to individuals from Somalia.  Non-immigrant visas (i.e. F, J, H-1B, L-1) will be issued, but only with extra vetting. 

·         Lastly, no visas, of any type, will be issued to nationals from Syria or North Korea.

In response to the President’s Proclamation, the Supreme Court cancelled the oral argument on the earlier version of the travel ban, scheduled for October 10, 2017.  The Supreme Court asked the attorneys in the case to submit briefs as to whether the travel ban issue is now moot.  When a policy expires and a new policy is put in place, the challenge to the old policy can be “moot” meaning it is no longer debatable because the old policy has expired.