OPT STEM EXTENSIONS EXTENDED

The USCIS now has until May 10, 2016 to finish its review of the more than 50,000 public comments submitted in response to the new STEM OPT Extension regulations and to issue a new STEM Program.  Until May 10, 2016, the old OPT STEM extension program remains in effect. 

In August 2015 the US District Court for Washington, DC ruled that the USCIS STEM OPT Extension program was invalid because the USCIS had not followed the proper procedure when STEM Extension program was created.  Before creating a new program, the law requires that the USCIS must first give the public time to comment on the program proposal.  The USCIS did not allow the proper public comment period when creating the STEM Extension program.

In August 2015 the federal judge ruled to abolish the STEM Extension program, but the judge also found that abolishing the program immediately would cause a hardship to F-1 students currently on OPT.  The judge allowed the USCIS six months until February 2016 to re-create the program using the proper procedure.  The six month window was set to expire on February 12, 2016.

The USCIS re-issued the STEM Extension program last fall and received over 50,000 comments from the public.  In December 2015 the USCIS requested additional time to review the public comments.  The judge has now granted the USCIS an additional three months to complete its review of the public comments.  The USCIS has until May 10, 2016 to complete its review of the public comments and enact the new STEM Extension program.

H-1B TELECONFERENCE FEB 4, 2016

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2016.

H-1B Teleconference Agenda

• H-1B Cap Basics and Projections

• H-1B Dependency

• H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?

• Hot issues:  
• CPT / OPT maintenance
• NIV maintenance
• Cap-gap for F-1s
• H4 EAD rule
• STEM OPT Lawsuit
• Increased filing fees for 50/50 employers

• Top 10 things H-1B employers can do to stay compliant

• Legislative Update
• DACA/DAPA to the Supreme Court
• I-140 EAD
• Presidential Election: What we can expect from President Trump

• Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

USCIS TO ALLOW DUAL INTENT, 240-DAY WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

Starting February 16, 2016, the USCIS will make life much easier for H-1B1, CW-1 and E-3 visa status holders thanks to a new regulation that has just been posted to the Federal Register.  The original proposed regulation was published in April 2015.

The new regulation will grant extended work authorization to these visa status holders who timely file their visa status extension petitions.  These changes will bring these three categories into harmony with similar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dual intent will remove an unnecessary legal headache when these visa status holders apply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa status holders must be extremely careful when preparing their green card petitions or risk running afoul of the immigrant intent rule.  Strictly speaking, these visa status holders cannot intend to file for US Permanent Residency.

Granting extended work authorization is also a welcome for these visa status holders.  Under the current interpretation these workers were forced to stop working unless their visa status extension was approved prior to the expiration of the initial visa status.  When the new rule is effective, those in H-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency of their visa status extension petition, even if the extension petition is not approved before the expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visa categories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status for Singaporean and Chilean nationals.  The E-3 functions similarly for Australian nationals.  These visas were approved by Congress when trade deals were struck with these three countries.  The advantage of these visas is that they are not subject to the H-1B cap.  There are quotas for these categories, although none of the quotas have veer been reached.

FEBRUARY 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State has just issued the February 2016 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2016. 

February 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	01MAR12	01AUG08	C	C
3rd	01OCT15	01OCT12	15JUN04	01OCT15	08JAN08

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 progressed by one month. EB-3 has progressed almost one year in just the last few months.  This is great news for this category.

India: EB-2 jumped again. Four months ago it was 01MAY05. This represents a three-plus year movement in just four months.  This trend may continue. EB-3 moved four 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 two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months.  We expect it to get into 2009 in the by this spring or early summer.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the 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.

8TH CIRCUIT GREATLY CURTAILS DOL INVESTIGATORY AUTHORITY IN LCA INVESTIGATIONS

The Greater Missouri Medical Pro-Care Providers H-1B case is the most noteworthy H-1B since the 2000 decision, Defesnor v. Meissner.  The latest decision in Greater Missouri greatly curtails the DOL’s investigative powers and significantly reduces liability concerns for H-1B employers.

                                                                 

The DOL has traditionally used any H-1B employees’ complaint to investigate a company’s entire H-1B program.  I have personally defended H-1B employers in about a dozen matters where the DOL has used this technique to extract significant fines from H-1B employers for technical alleged violations.  In most of these instances, the H-1B employer has paid off the DOL instead of spending considerable fees and time defending itself.  With this latest decision, this DOL method should stop.

The 8^th Circuit held that the underlying Congressional statue, “expressly ties the [DOL’s} initial investigative authority to the complaint and those specific allegations.”  (Page 10 of the decision, linked above).  The DOL must have “reasonable cause” to extend the scope of an investigation. 

It is illustrative to understand what happened in Greater Missouri.  The H-1B employer, GMM, hired several Physical and Occupational Therapists.  In June 2006, one of the H-1B Therapists filed a Complaint that eventually found its way to the DOL.  In response to this Complaint the DOL open a company-wide investigation and requested documentation on every H-1B employee on GMM’s roster.  Based on this documentation, the DOL ordered GMM to pay $382,890 in back wages to H-1B employees.

The case meandered through the administrative courts for years.  The case found its way to the Administrative Review Board, which issued a decision in January 2014.  In that decision, the ARB confirmed that that the DOL’s investigative authority could include all H-1B employees, however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  This finding reduced the back wage fine to $106,786.   

A dissent by one of the three ARB judges opined that the DOL’s investigative authority was limited to just the Complainant’s allegations.  This dissent was referenced by the 8^th Circuit in the most recent decision.

If this decision holds firm, the DOL’s investigative powers will be constrained to the matter at hand.

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.