H-1B CAP SEASON 2020: MUST FILE MARCH 1-20, 2020

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020. Accordingly, all MU clients should begin to identify the beneficiaries that they would like to sponsor for the 2020 H-1B cap season. 

The USCIS has not yet announced the specific data that will be required for registration, although they have assured the public that the required information will be “basic.”  There will be a nominal $10 fee for each registration.  After the New Year, MU will hold a webinar teleconference to outline the process for our clients.

H-4/ EAD RULE WILL CONTINUE UNTIL SPRING 2020 AT THE “EARLIEST”

In a filing with a federal judge, USCIS indicated that it has delayed the revocation of the H-4/EAD rule.  USCIS says that “the earliest possible publication date” of the revocation is spring 2020.  This is good news for H-4 /EAD holders. 

There are rumors that the USCIS has badly miscalculated the negative impact on the US economy, which is why the revocation of the rule has been ongoing for two years.  Rules of this type must be approved by the Office of Management and Budget, which likely has called into question USCIS’ calculations.

Even if a rule is published by USCIS, it will have to offer the rule to the public for notice and comment, a process that will likely receive much scrutiny and could further delay the Trump Administration’s attempts at revocation.

USCIS FINISHES H-1B LOTTERY

USCIS has finished the data entry for all FY 2020 H-1B cap-subject petitions.  Musillo Unkenholt continues to see H-1B checks being cashed and continues to receive H-1B receipt notices in our mail.  Therefore H-1B cap-subject petitioners should not lose hope yet if they have not received an H-1B receipt notice.  We expected that we will continue to see H-1B receipts for the next two weeks.

After the final H-1B receipt notices are sent by USCIS, they will begin returning all H-1B cap-subject petitions that were not selected.  In past years it has taken USCIS 1-2 months to complete this process.  Musillo Unkenholt does not expect the final H-1B returns until late June or early July.

USCIS BLOCKED FROM ENFORCING UNLAWFUL PRESENCE MEMO AGAINST F-1 AND OTHER STUDENTS

A federal district court judge has issued a nationwide preliminary injunction, effective immediately, which prohibits the USCIS from enforcing its "Accrual of Unlawful Presence and F, J, and M Nonimmigrants” Guidance Memo.  That memo penalized F, J, and M international students for overstaying or violating the terms of their visas in extremely harsh, unprecedented ways.  MU Law detailed that Guidance Memo in September. 

This is great news for F, J, and M nonimmigrants, including those who trained under CPT and OPT.

USCIS RECEIVES 201,011 H-1B CAP PETITIONS

USCIS announced that it received 201,011 petitions during the filing period, including petitions filed for the advanced degree exemption.  This is notably more than the 190,000 H-1B petitions received during the April 2018 filing period).

USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 36% of their H-1B cap filings (non-US masters degrees) to be H-1B cap winners.  Based on prior years, we will receive H-1B lottery winner receipts throughout April and May.  Starting in June, we will receive the H-1B lottery loser petitions.  Traditionally if you do not receive a winner receipt notice by June 1, you have probably lost the H-1B lottery.

H-1B CAP 2019 HAS BEEN REACHED

As expected, USCIS has received more than 85,000 H-1B cap-subject petitions on the very first day of H-1B cap filings.  They did not specify how many H-1B cap-subject petitions were received.  We expect to know the overage within the next few weeks.  Last year, the announcement happened on April 13.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

   •  Extend the amount of time a current H-1B worker may remain in the

       United States;

   •  Change the terms of employment for current H-1B workers;
   •  Amend the H-1B petition to notify the USCIS of the filing of a new LCA  

      and/or geographic change in employment;

   •  Allow current H-1B workers to change employers; and
   •  Allow current H-1B workers to work concurrently in a second, 

      contemporaneous part-time H-1B position. 

SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019.  In anticipation of that deadline, here are seven things to remember about the H-1B cap.

 

1. These types of cases are subject to the H-1B cap: 

·    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; and

·     Prospective international employees currently living abroad.

 

2. These types of cases that are not subject to H-1B cap: 

·     H-1B amendments/extensions/transfers

·     When the employee has been in H-1B status for less than 6 years

·    Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada,  Mexico

·     MDs who have received a J-waiver of their 2 years foreign residency requirement.

·     H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

 

3.  Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs an H-B cap lottery, including all cases.  This is for the 65,000 H-1B regular cap slots.  Then, the USCIS runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. 

 

4.  Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

 

5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

 

6.  We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

 

7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible, the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

H-4 EAD ELIMINATION REGULATION TO BE ANNOUNCED SHORTLY

As we have mentioned several times, the Trump Administration is seeking to eliminate 90,000 lawful jobs by ending the H-4/EAD rule.  This rule, which was first passed in February 2015, provides work authorization to spouses of H-1B workers, provided that the H-1B worker has an approved I-140. 

USCIS sent the new regulation, "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization," to the Office of Management and Budget on February 20, 2019.  It is currently pending review. OMB is expected to publish a Notice of proposed rulemaking in the near future, although OMB has not released a timeline.  The publication of the notice will allow the public to offer notice and comment.  

After the notice and comment period, USCIS must review and consider the public’s comments, before publication of the final rule.  Unfortunately, it is not expected that the public’s comments will materially change the new rule’s core goal: the elimination of the H-4/EAD.

This needless attack against lawful workers is further proof that the Trump Administration is not at all interested in legal immigration, despite the President’s public statements.  The reality is that the President and his administration are only interested in harming immigrants: lawful and otherwise.

PHILIPPINES REMOVED FROM H-2 VISA LIST

The USCIS has published a notice in the Federal Register announcing changes to countries who are eligible to supply workers pursuant to the H-2 visa program.  The Philippines is no longer one of the countries that is eligible to supply workers under this program. 

This is an annual notice publication that covers the period from January 19, 2019 – January 18, 2020. 

It is important to note that this has no impact whatsoever on Registered Nurses, Physical Therapists, Medical Technologists and other allied healthcare workers.  These healthcare workers are normally filed under the H-1B visa (temporary non-seasonal workers) or Green Cards (Permanent residents).  H-2 visas are normally associated with agricultural workers, trades workers in fields like construction, and other seasonal workers such as those in resorts or the fishing industry.

The rationale for eliminating the Philippines from the H-2 program is explained in the report.  This decision will be revisited in January 2020.

The Philippines has a high H-2B overstay rate. In FY 2017, DHS estimated that nearly 40 percent of H-2B visa holders from the Philippines overstayed their period of authorized stay. Additionally, among all U.S. posts throughout the world, U.S. Embassy Manila issues the greatest number of T-derivative visas (T-2, T-3, T-4, T-5, T-6), which are reserved for certain family members of principal T-1 nonimmigrants (certain victims of a severe form of trafficking in persons). U.S. Embassy Manila issued approximately 40 percent of the total T-derivative visas issued worldwide from FY 2014-2016. A recent review of certain T-1 status recipients, whose spouses were issued T-2 visas during this same period, shows that approximately 60 percent were determined to have been trafficked to the United States on H-2B visas. DHS and DOS are concerned about the high volume of trafficking victims from the Philippines who were originally issued H-2B visas and the potential that continued H-2B visa issuance may encourage or serve as an avenue for future human trafficking from the Philippines. DHS and DOS also believe that these overstay and human trafficking concerns are severe enough to warrant removal from the H-2A visa program as well. This concern is informed by a four-fold increase in H-2A visa applications from nationals of the Philippines between FY 2015-2018. The Philippines' continued inclusion creates the potential for abuse, fraud, and other harm to the integrity of the H-2A or H-2B visa programs.

H-1B COMMENT PERIOD CLOSED

Last month USCIS published two proposed rules to the H-1B cap process.  As we noted on December 5, 2018:

 The two rules are:

1.    Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2.    H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

Now that the comment period has ended the USCIS must read and consider all of the comments, which were plentiful.  Many of the comments focused on the fact that rushing this proposal forward for the April 1, 2019 H-1B cap is a bad idea.  MU Law agrees that the USCIS is moving too fast with these recommendations.

The USCIS has not announced a timetable for a decision as to whether the proposed changes will be adopted and, if so, whether they will go into effect for April 2019.  It is however expected that they will make a decision by February.

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.

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. 

USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD PARTY WORKSITES IS NOW PERMITTED

USCIS has updated its Optional Practical Training Extension for STEM Students (STEM OPT) webpage indicating STEM OPT participants may engage in training experience at third party worksites as long as the all of the training obligations are met.  The employer must maintain a bona fide employer/employee relationship with the student.  Previously the USCIS had said that STEM OPTs could not work at third-party locations. 

Any material changes in the student’s employment must be reported to the Designated School Official (DSO) within 5-10 business days.  These changes include any modifications to the training listed on the I-983, a change in the employer’s name or address, and termination of the student’s employment.

The USCIS’ backtracking was likely a result of a lawsuit filed in federal court.  That lawsuit, ITServe Alliance v. Nielsen, was filed by Attorney Jon Wasden.  Jon, who is a friend of MU Law, previously worked for the USCIS’ AAO Office.  He has filed several lawsuits on behalf of H-1B employees and H-1B employers.  If you have an egregious denial decision and would like to have Jon review your case, please contact him or contact MU and we an put you in touch with him.

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!

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. 

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. 

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.

REGISTER FOR MU HEALTHCARE IMMIGRATION WEBINAR ON AUGUST 1

MU Law is pleased to announce a free healthcare immigration webinar on August 1, 2017 at 3PM ET for all clients and friend of the firm.  It is ideal for US employers, staffing companies, recruiters, and others interested in healthcare immigration.

Click here to REGISTER

 The Healthcare Immigration Seminar will feature these topics:

• Green card Immigration for Nurses and Physical Therapists (Schedule A occupations)
• Filing for Green card when you have an Unanticipated Worksite
• Visa Screens and Healthcare Worker Certificates
• FCCPT and the future of PT immigration
• H-1B visas for PTs, OTs, Med Techs, and other allied healthcare workers
• Managing Social Security Numbers and Licensure
• H-1B cap-exempt entities
• Immigration under the Trump administration
• Legislative and Regulatory changes that may be on the horizon

HOW THE US ELECTION WILL (OR WON'T?) CHANGE IMMIGRATION

On Tuesday US voters will go to the polls to elect 435 House of Reprehensive members, 34 Senators, and of course, a new US President and Vice President.  The biennial election will set the stage for the next two years of federal legislation.  Pundits are calling it the most important election of our lifetime and are predicting massive changes in immigration law.

If Hilary Clinton is elected, she promises to make immigration a top priority.  She is calling for Comprehensive Immigration Reform including a pathway to legalization for millions of undocumented and illegal foreign nationals.  She expects to have legislation proposed within her first 100 days.

If Donald Trump is elected, he is calling for  a wall along the US-Mexican border and greatly increased regulation in all corners of immigration.  His changes to the law will begin immediately. 

It seems unlikely to MU Law that any of this happen immediately.  It also seems unlikely that any immigration changes will be incremental, not dramatic. 

Immigration laws are implemented in two basic ways: legislatively and administratively.  Legislative laws must pass both branches of Congress, the House and the Senate.  The betting markets have concluded that the most likely outcome for this week’s election is that Hillary Clinton will win the presidency, the Democratic Party will have a tiny majority in the Senate, and the House will remain in significant Republican control.  Betting markets have proven to be a more reliable predictor of electoral outcomes than polls or pundits. 

That outcome is a recipe for gridlock.  Even if Hillary Clinton wants to push for a massive legalization program, she will need to convince at least 50% of the House membership to go along with the plan.  It is unlikely that a Republican- controlled House will want any part of a Clinton-inspired immigration bill.  They will be much more likely to spend their time on more email investigations and Benghazi hearings.

A President-elect Clinton may be able to make some progress on administrative changes, which is also known as Executive Action.  Administrative changes are interpretations of law by the Department of Homeland Security.  The President ultimately sets all policy for administrative agencies such as DHS. 

President Obama had some success in this area, such as sanctioning the DACA rules, which allowed undocumented foreign nationals to obtain work authorization if they entered the US as children, provided that they had no other criminal record.  

Through the USCIS, President Obama announced some additional Executive Action in November 2014.  He has had mixed success in this area.  He was rebuked by the courts for overstepping his administrative authority when he sought to create DAPA, a program that would have extended DACA-like rights to undocumented parents of US citizens and permanent residents.  On the other hand, the USCIS has expanded work authorization for certain spouses of H-1B visa holders. 

Which leads to our prediction: Hillary Clinton will win the US Presidency but will not have success passing meaningful immigration legislation.  She may be able to make marginal changes to immigration policy through administrative decision-making, which will likely be less-dramatic and newsworthy.

FAQ ON THE NEW FCCPT STANDARD

What is the new policy?

All applicants for the FCCPT Type I Certificate must now hold a diploma that says the word “Masters”.  If you have a diploma that says “Bachelors” you will not be eligible for the Type I Certificate.  Also, an applicant must have at least 202.1 credit hours.

When does the new policy go into effect?

It is effective immediately.  If you have a pending Application before the FCCPT, they will be returning your Application and issuing you a refund.

I have heard that the standard may be again raise to a Doctorate of Physical Therapy.  True?

Yes.  It is expected that if you apply for the Type I after January 1, that you will need to have a DPT in order to qualify for the Type I.

But when I graduated from University, the American standard was a lesser degree.  Am I “grandfathered in” under the old standard?

Unfortunately the USCIS is taking the position that the Application filing date is controlling, not the date of graduation.

I have a Type I that is expiring shortly.  Should I be concerned?

No.  Renewals do NOT examine education, only licensure verification and proof of English proficiency.

Why is the USCIS doing this?

The USCIS’ decision was predicated on a number of misunderstandings and inaccuracies. USCIS’ decision to terminate FCCPT accrediting these international programs is largely based on flawed assumptions around required coursework hours and degree titles. 

Is anyone doing anything to try and change this new policy?

Yes.  There is a concerted effort from stakeholders to educate the USCIS about the problems with its new interpretation and the massive impact on US patients and on internationally-trained Physical Therapists.