VISA PROJECTIONS FOR THE NEXT FEW MONTHS

MU Lawyers were at AILA’s annual convention in Boston last week.  In discussing the Visa Bulletin with several attorneys, and piecing together some information from DOS officials, here are our unofficial projections for the remainder of Fiscal Year 2014, which ends September 30, 2014.

EB-1  

EB-1 is expected to stay current through the Fiscal Year.

EB-2

China:  Chinese EB-2 numbers could progress, although it does not appear that it will move too quickly.

India:  Indian EB-2 numbers jumped dramatically between May and June 2014, progressing nearly four years to September 2008.  Our sense is that the Indian EB-2 number will continue to stay in 2008, and will continue to progress because the DOS does not want a single visa to go unused in this category.  The number may temporarily become unavailable in September 2014, which is common.

All Other: All other EB-2 should remain Current for the remainder of the Fiscal Year.

EB-3

China: Chinese EB-3 numbers have been on a wild ride this year.  They were into 2012 for much of the year before a massive retrogression in June.  There is a sense that the DOS is unsure just how many numbers are needed.  MU Law’s read is that the number will progress this summer, perhaps several years.  Again, the DOS is trying to insure that all numbers in this category are used.

India: The DOS has this category accurately projected.  As a result India EB-3 will continue its very slow progression.

Philippines:  It seems unlikely that this number will get into 2010.  That having been said, the number should progress steadily in FY 2015.

All Other:  The DOS tapped the breaks on this number in June, stalling it at April 2011.  MU Law’s sense is that the number will progress before becoming temporarily unavailable later in the Summer. 

WANT TO HAVE DINNER AT AILA ANNUAL?

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. We have about 15 people signed up already.  It is a great chance to catch up with old friends (and new ones!). It is a casual event.

If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by Monday. Friends, spouses, etc. are also welcome.

COULD REP. CANTOR’S LOSS HELP IMMIGRATION REFORM?

Well, in spite of my headline the answer is probably not, but there is some hope.

Rep. Cantor (R-VA) was the second-in-command in the Republican-majority House of Representatives.  It is generally believed that any material Immigration Reform measure must be driven by the House Republicans.  Rep. Cantor was generally known to be a pro-business Republican, who was helping push for immigration reform behind-the-scenes, or at least that is what his primary opponent, Dave Brat, led central Virginians to believe.  Mr. Brat’s shocking primary upset on Tuesday seems to mean that immigration reform is dead for 2014.

So could Rep. Cantor’s loss actually help?

It seems unlikely but it may not be as bad as it seem today.  For one, other immigration-friendly southern Republicans, such as Sen. Lindsay Graham (R-SC), coasted to primary victories.  Second, and the reason for my provocative headline, is Rep. Kevin McCarthy (R-CA).  Rep. McCarthy is the next-in-line for Rep. Cantor’s No. 2 position within the House Republican leadership.  As this article in the Irish Central points out, Rep. Cantor “represents a central California district where pro-immigrant issues, immigrant issues, such as the need for immigrant labor among the huge farming concerns, are critical.  His district is 35 percent Latino and he is on record as favoring a version of immigration reform.”

Yet again leadership on the issue turns back to the Majority Leader Rep. John Boehner (R-OH).  Rep. Boehner has straddled the line between the pro and anti-immigration wings of his party, a line that seems aimless.  If he can articulate a strategy immigration reform might have a chance.  For now, all we have is glimmers of hope.

JULY 2014 VISA BULLETIN

The Department of State has just released the July 2014 Visa Bulletin.  This is the tenth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 jumped again.  It is now into 2009, which is a two year jump in the last two months.

India EB-2 also dramatically moved forward.  It progressed four years to September 2008.

The Chinese EB-3 number stayed back at October 2006.  

The All Other EB-3 held steady as well.  It remains at April 2011.  Our sense is that it will not progress until the next US fiscal year.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUL09	01SEP08	C	C
3rd	01APR11	01OCT06	01NOV03	01APR11	01JAN09

US EXTENDS CW-1 PROGRAM THROUGH 2019

Since 2008, the US has sought to harmonize the immigration laws of the Commonwealth of the Northern Mariana Islands (CNMI) with the mainland US.  Part of this initiative was the establishment of a CNMI-Only Transitional Worker (CW-1) visa classification allows employers in the CNMI to apply for temporary permission to employ nonimmigrant workers who are otherwise ineligible to work under other nonimmigrant worker categories. The CW-1 classification provides a method for transition from the former CNMI foreign worker permit system to the U.S. immigration system.  The law also provides a CW-2 for dependents of CW-1 visa entrants.

On June 3, 2014, the US Department of Labor announced that it was extending this program through December 31, 2019.  The CW-1 program had been set to expire at the end of this year.

Philippine nationals make up a large number of the CW-1 visas that are granted.  The US Embassy – Manila has a webpage dedicated to explaining the CW-1 process.

The largest island in the CNMI is Saipan, where 90% of the CNMI population resides.  For this reason many people use the “Saipan” to mean “CNMI”.

MAKING THE PAYMENT FOR THE PRODUCTION OF YOUR GREEN CARD

US Green cards are either approved domestically through the I-485, Adjustment of Status process, or approved abroad through the Consular process. When the approval is made at the Consulate, the immigrant must make a final payment of $165 to the USCIS before they will start the production of the green card.

The $165 USCIS Immigrant Visa fee is for the cost of producing the green card.  This payment must be made through the USCIS ELIS (Electronic Immigrant System) on-line payment system.

MU Law encourages you to make this payment after you receive the immigrant visa packet from the US Consulate or Embassy, before you come to the US.  Until this payment is made the USCIS will not start production on your green card.

At the time of your interview at the U.S. embassy or consulate, the DOS interviewing officer should give you a USCIS Immigrant Fee handout. This document provides instructions on how to pay the $165 immigrant fee and included your A-Number and DOS Case ID. Your A-Number and DOS Case ID are located in the top right corner.

OPTIONS FOR FOREIGN STUDENTS ON OPT

One of the largest blocks of applications for the H-1B cap is foreign students who are currently working on OPT (optional practical training).  Students who are authorized to work on OPT will hold an employment authorization document (EAD) or card.  The validity dates of the student’s work authorization under OPT will be printed on the face of the card.

Students with work authorization under OPT whose H-1B has been chosen under the cap are eligible for cap-gap work authorization.  The student should present the H-1B receipt notice to his/her international student office.  The school will issue a new I-20 to the student extending his/her work authorization to October 1 when the H-1B will take effect.

If the student’s H-1B has not been chosen under the cap, the student must stop working on the end date of his/her OPT authorization.  The student then has the following options:

1. If the employer participates in e-verify and the student’s degree is in a STEM (science, technology, engineering, and mathematics) field, the student may qualify for an extension of their OPT. 

2. The student can change to a different immigration status, such as H4 or L2. 

3. The student can return to school to seek a new degree.  The student should contact his/her school to have his/her SEVIS record updated or transferred to a new school.

4. The student can depart the US and return to his/her home country. 

At the end of the OPT period, the student has a sixty day grace period during which the student is not authorized to work but is authorized to remain in the US to conclude his/her affairs and pursue one of the options above.  

H-4 EAD RULE IS ELIGIBLE FOR COMMENT

The Department of Homeland Security has formally proposed the H-4 EAD rule.  The rule, if passed as drafted, will allow H-4 spouses of H-1B holders to obtain EAD employment authorization.  Several major news publications, including Bloomberg BNA, have picked up on the news.  MU Law attorney Chris Musillo was interviewed for the Bloomberg article. 

DHS estimates that this rule will allow about 100,000 H-4 spouses to obtain work authorization, representing a tiny proportion of the overall workforce (0.0647%), and that figure assumes that every single possible H-4 spouse immediately files for the work authorization.

On the other hand the enactment of the regulation will provide tangible benefits for the H-4 spouses who will be able to enter the labor market earlier than they would have otherwise been able to due to lack of visa availability.  The DHS continues,

While there would be obvious financial benefits to the H-4 spouse and the H-1B nonimmigrant's family, there is also evidence that participating in the U.S. workforce and making gains in socio-economic attainment has a high correlation with smoothing an immigrant's integration into American culture and communities.

The comment period will remain open until July 11, 2014.  After that the DHS must review the comments and issue a final published law.

NOTE – the Bloomberg article is reproduced with permission from Daily Labor Report, 87 DLRA-3 (May 6, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)  <http://www.bna.com>

Bloomberg DHS Regs Story.pdf

JUNE 2014 VISA BULLETIN

The Department of State has just released the June 2014 Visa Bulletin.  This is the ninth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 continued to move steadily.  It is now into 2008.

The Chinese EB-2 and EB-3 are no longer inverted.  The Chinese EB-3 moved all the way back to October 2006.  It remains to be seen if the Chinese EB-2 and EB-3 swap places again in the next US fiscal year, which starts October 1, 2014.

The All Other EB-3 moved back as well.  It is now April 2011.  Our sense is that it will not progress until the next US fiscal year.

The Indian numbers basically remained the same.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22MAY09	15NOV04	C	C
3rd	01APR11	01OCT06	15OCT03	01APR11	01JAN08
Other Workers	01APR11	01JAN03	15OCT03	01APR11	01JAN08

MANY H-4s NOW ALLOWED TO GET EADs

As expected the Department of Homeland Security has just issued a press release announcing that some H-4 nonimmigrants will be allowed to apply for EAD (Employment Authorization Documents) cards.  H-4 nonimmigrants are spouses of H-1B workers.  The EAD cards will allow H-4 spouses to work in any occupation.  This is a major change that has been considered for several years.

In order to qualify for the EAD card the principal H-1B worker must have either:

1. An approved I-140; or

2. A PERM Application (Labor Certification) that has been pending for at least one year.

This proposed rule will help many H-4 spouses who are prohibited from working because of retrogression.  At a press conference this morning, the DHS indicated that 97,000 H-4 spouses would be immediately eligible for the EAD.  It is an enormous step in the right direction and DHS and Deputy Secretary Alejandro Mayorkas deserves praise for their effort to produce a meaningful, well-thought out rule aimed at treating fairly the people who are playing by the rules. 

UPDATE (MAY 9 2014): It looks like the rule will be published on May 12 and the comment period will end 60 days later. 

FOREIGN NATIONAL’S TRAVEL HISTORY NOW ON-LINE

The U.S. Customs and Border Protection (CBP) discontinued paper I-94 cards in May 2013, replacing them with an electronic I-94 record, which is accessible through www.cbp.gov/I94. 

Now the CBP is rolling out the latest enhancement of that service: a five year historic record off a foreign national’s arrival and departure history.  Foreign nationals will need their name, date of birth, and passport information, in order to access their travel history.  The database is solely for entries and exits from the U.S.  It does not identify changes of status, extensions of stay, or adjustments of status granted by U.S. Citizenship and Immigration Services.  

VISA BULLETIN PREDICTIONS FOR SUMMER 2014

Every few months Charlie Oppenheim of the Department of State discusses predictions for future Visa Bulletins.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

Here are his projections for a recent conversation with AILA:

•           India EB-2: before the end of the summer India EB-2 will be into 2008.
•            Worldwide EB-2: no major changes.
•           Worldwide EB-3, including Philippines: as happens every summer, EB-3 may retrogress and even become unavailable until the new fiscal year that starts October 1, 2014.
•           China EB-3: demand has been steady since the China EB-2 and China EB-3 dates flip-flopped.  China EB-3 may retrogress his summer.
•            National Visa Center:  the NVC is now sending out Fee Bills 8-12 months in advance of the expected priority date becoming current.  Previously, the NVC had been sending out the Fee Bills 12-18 months in advance. 

500,000 UNFILLED RN JOBS BY 2022

The Occupational Outlook Handbook (OOH) is a treasure trove of data.  Government agencies, politicians, and employers use this data to analyze and assess trends in US employment.  The 2014 edition of the OOH shows that job openings in nursing is expected to outpace almost all other occupations.  In fact, healthcare occupations in fields like Physical Therapy, Occupational Therapy, Audiologists, and Home Health dominate the list of fastest-growing occupations. 

Traditionally, America has been welcoming to immigrants in occupational zones that Americans have been unwilling to fill.  Whether Congress recognizes this fact and improves the pathway for these workers to come to the US is still an open question.

Organizations such as FWD.us and the Partnership for a New American Economy are working exceptionally hard to convince legislators of the potential gains to the US economy by strategic immigration policy.  One of their recent projects has been to show the impact of immigration on a state by state basis, called Map The Impact.  Map The Impact allows users to see the local impact on restrictive immigration.

For instance, we can learn that there will be 60,000 open nursing positions in Florida alone by the end of the decade.  There will be another 10,000 open positions in the small state of New Mexico.

There have been some recent indications that the Republican’s animosity to immigration reform may be thawing.  Republicans such as likely Presidential candidate Jeb Bush and Arizona Sen. Jeff Flake have recently spoke positively of immigration reform.  For America’s sake, let’s hope others are listening.

USCIS CONFIRMS THAT H-1B PPS WILL NOT START UNTIL 4/28

U.S. Citizenship and Immigration Services (USCIS) confirmed that they will begin premium processing for H-1B petitions subject to the fiscal year 2015 cap on April 28, 2014.  USCIS first announced that they would begin premium processing for H-1B cap cases no later than April 28 in a news release on March 25.  This latest news release confirms the April 28, 2104 date.

PBS SEGMENT ON PHILIPPINE RNs

The American public newscaster, PBS, recently broadcast a piece on the migration of nurses to the US.  The segment focused on the H-1B nursing scheme that resulted in a guilty verdict in 2013.  The scheme was deplorable and the guilty verdict was warranted based on the facts of the case.

The PBS video focusses on the worst recruiters and the worst abusers of the system.  It also misses a big point – if the US visa system allowed for nurses to enter the US in a reasonable amount of time then these poachers would not be able to use scam tactics to attract desperate nurses. 

Ethical codes are one good measure.  Codes like the one used by the AAIHR insure fairness to all stakeholders in the system: nurses, recruiters, facilities, and patients.  If you are a nurse seeking to come to the US, MU Law suggests that you dutifully research the practices of your recruiter.  Make sure that they are acting in an ethical fair manner. 

The good news: many of the nurses highlighted in the segment had great results and are now fulfilling their American dream. 

USCIS RECEIVED 172,500 H-1Bs

The USCIS has just announced that it received 172,500 H-1B cap-subject petitions for this year’s H-1B cap.  The H-1B cap is 85,000, of which 20,000 are reserved for graduates of US Masters Programs.  Essentially the USCIS received 200% of the H-1B cap allocation.  Put another way, only 50% of the H-1B petitions will be accepted under the H-1B lottery.

The USCIS has inputted all 172,500 and processed the H-1B lottery for both the H-1B masters cap and the H-1B regular cap.  The USCIS has not yet announced when it will notify H-1B lottery winners and losers, although the Premium Process Service petitions should start being notified by April 28.

A higher percentage of masters cap H-1B petitions are accepted than H-1B regular cap petitions because H-1B master cap petitions that do not win the H-1B masters lottery are re-submitted into the H-1B regular cap lottery.

As soon as MU Law begins receiving confirmation of H-1B lottery winner and losers will immediate contact our clients.

MAY 2014 VISA BULLETIN

The Department of State has just released the May 2014 Visa Bulletin.  This is the eighth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 leaped ahead by almost six month.  It is now at November 2007.

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are EB-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.The Chinese EB-3 mirrors the All Other EB-3.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15APR09	15NOV04	C	C
3rd	01OCT12	01OCT12	01OCT03	01OCT12	01NOV07
Other Workers	01OCT12	01OCT12	01OCT03	01OCT12	01NOV07

CERTAIN H-4s WILL GET WORK AUTHORIZATION -- WILL IT INCLUDE H-4s OF HEALTHCARE WORKERS?

The White House yesterday has announced a series of notable improvements to the nation’s business immigration scheme.  The main one of interest to readers of this blog will be that certain H-4 visa holders will be authorized to receive employment authorization cards (EAD cards).  These EAD cards will allow these H-4 workers to work at any US employer for the duration of the validity of the card.  The period of validity is expected to mirror the H-1 primary Beneficiary’s period of validity.

However the press release limits the work authorization to “spouses of certain high-skill workers on H-1B visas.”   The press release does not define “high-skill workers” and so it is unclear if the White House means STEM workers, all H-1B workers, or some other definition.

A 2012 U.S. Department of Homeland Security - Retrospective Review of Existing Regulations – Progress Report sought to extend employment authorization to H-4 dependent spouses of H-1B nonimmigrants “who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”  MU Law first noted this Report in December 2012.

That language appeared to limit H-4 EAD authorization only to spouses of H-1Bs who were stuck in their H-1B beyond six years because of retrogression.  It remains to be seen what the White House means by this latest press release.  Nonetheless yesterday’s announcement clearly is a step in a positive direction.

H-1B CAP HAS BEEN REACHED

In a surprise to no one, USCIS announced today that it has reached the H-1B cap for both the regular and master’s cap.  The USCIS is expected to hold an H-1B lottery within the next week. 

If your H-1B petition is filed under the Premium Processing Service (PPS) you should hear of its acceptance no later than April 28.  However if your PPS petition is not accepted, it may take until mid-May before you find out that the case was not accepted under the H-1B lottery. 

Reminder:  The PPS does not give a petitioner any greater chance at winning the H-1B lottery, but it does allow for speedier notice and decision-making.

If your H-1B petition is filed under the Regular Processing path it may be until May or even June before your find out if your H-1B petition is accepted under the lottery or not.  Last year it took about 10 weeks before all H-1B petitioners were notified of their acceptance or rejection.

H-1B CAP PROJECTION AND TIMING

Projection

The H-1B cap will be reached this year on its first day of eligibility.  MU Law expects around twice as many H-1B petitions as allowed will be filed this year.  We are basing this projection on our internal H-1B cap filings, discussions with other AILA attorneys, our historical experience with H-1B numbers since the mid-1990s, and media sources.  That having been said, our projection is not a scientific one.  Indeed, no one knows exactly how many H-1Bs will be received.

The H-1B cap petitions will be divided into two categories: (1) Those who have graduated from US Master Degree programs; and (2) all other H1-B cap-subject petitions (“regular H-1B cap”).  The US Masters category has a quota of 20,000 H-1B petitions.  The regular H-1B cap has a quota of 65,000 H-1B petitions.

Timing

Since both H-1B categories will be oversubscribed, the USCIS will hold an H-1B lottery.  The H-1B lottery will be held next week.  Last year the H-1B lottery was held April 9, 2013.  Although the H-1B lottery will be held next week, the USCIS did not notify all petitioners of the outcome until June 2013.

If a petitioner wants know sooner, the H-1B may be filed via the Premium Processing Service (PPS).  The PPS does not give a petitioner any greater chance at winning lottery, but it does allow for speedier notice and decision-making.