Tuesday, September 25, 2018

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.

Monday, September 17, 2018

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
08AUG15
01OCT09 

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.



Thursday, September 6, 2018

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.