H-1B CAP REACHED AT 233,000

U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received nearly 233,000 H-1B petitions during the April 1-7 filing period.  This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption.  This is the largest number of H-1B cap-subject petitions ever received.  About 36% of the H-1Bs will be accepted and 64% will be returned. 

Earlier today, USCIS used a computer-generated random selection process, or “H-1B lottery,” to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. 

It is expected that it will take until mid-May before the H-1B lottery winners and losers are notified.  USCIS will begin premium processing for H-1B cap cases no later than May 11, 2015. 

NEW H-1B NOW REQUIRED WHEN AN H-1B WORKER CHANGES LOCATION

In a dramatic change ignoring 20 years of past precedent, the

USCIS' Administrative Appeals Office has decided that a new H-1B

petition must be filed every time an H-1B employee changes worksites, if

the new worksite is outside of the original metropolitan area.

Effective immediately all MU Law client-employers must file new or amended

H-1B petitions to protect these H-1B workers.  This will dramatically and

negatively change the process for many H-1B employers, especially those

employers in the staffing and consulting industries.  These industries

should expect to spend additional time and cost preparing and filing

previously unnecessary H-1B amendment petitions.

The AAO decision is titled, Matter of Simeio Solutions, LLC.

MU'S SCHNEIDER NOMINATED FOR PROFESSIONALISM AWARD

Congratulations! MU's Maria Schneider has been nominated for the Cincinnati Bar Association's Young Lawyer Section Professionalism Award. This award honors the YLS member who best demonstrates respect toward colleagues, his or her clients, and the judiciary. The recipient of this award is an individual who reveres the legal process and all who are involved in it and encourages others to do likewise.

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

The USCIS has proposed regulations that will allow H-1B1, CW-1, and E-3 visa holders to have dual intent.  The proposed regulation will also 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 finalized, 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.

The CW-1 is transitional visa used for foreign nationals seeking to enter the Commonwealth of the Northern Marianas Islands.  The CW-1 visa was set to sunset in 2014, but recent legislation extends the transitional visa until December 31, 2019.

Healthcare workers who work in occupations that require at least a Bachelor degree may qualify for these visas.  Typically we see these visas used by Physical Therapists, Occupational Therapists, Doctors, Pharmacists, and Speech Language Pathologists.

CGFNS LAUNCHES E-COACH

One of internationally-trained Physical Therapists biggest headaches is equating their foreign college degrees to US college degrees.  With the aim of curing this headache, CGFNS has recently launched e-Coach Learning Service.   

The new program helps internationally educated health professionals by providing the resources necessary to help meet the requirements as specified in the assessment tool by outlining the courses needed to remediate the educational deficiencies identified on their Coursework Tool Evaluation and Summary Statement.

Coursework Tools include the Federation of State Boards of Physical Therapy (FSBPT) Coursework Tool for Foreign-Educated Physical Therapists and Physical Therapist Assistants (CWT) and the CGFNS Education Comparability Tool (ECT).

The service is available through CGFNS’ webpage.

SENATE BUDGET BILL PASSES WITHOUT IMMIGRATION AMENDMENTS

Senators and Congressmen have a long history of attaching pet amendments to budget and funding bills.  They know that these bills are “must pass” legislation, meaning that Congress will certainly pass a budget or else the entire government would shut down.  Since budget and funding bills are must pass, prized amendments get approved without going through the usual route, working their way through subcommittees and full committees.  This year several odd amendments were offered.

Sen. Hatch (R-UT) offered an amendment that sought to allow the conference committee to raise the H-1B cap, increase STEM visas, raise the green card cap, and increase the H-1B fee.  Sen. Grassley (R-IA) sought the exact opposite.  He hoped to restrict H-1B usage.  Neither amendment was successful. 

H-1B CAP NOTES: PREMIUM PROCESSING, NUMBER OF FILINGS, ETC.

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Tuesday April 7, 2015.  Below are some key points to keep in mind about this year’s H-1B cap:

-The USCIS makes no accommodation for delays caused by couriers.  Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 1, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) may not start until May 11, 2015, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.  Last year PPS began on April 28.

-The USCIS expects that more H-1B petitions will be received this year than last year.  At the recent AILA Manila chapter conference, a USCIS official said that he expected more than 200,000 H-1B cap-subject filings.  There were 172,500 cap-subject H-1Bs in 2014 (FY 2015).

-Last year it was mid-May before most H-1B lottery winners and losers found out about the outcome of their lottery selection.  Since the volume is expected to be greater in 2015, it may not be until June until lottery winners and losers know their outcome.

SEN. GRASSLEY HATES THE H-1B? NO, HE LOVES THE H-1B!

The Senate is controlled by Republicans who are odds at how to handle the real and perceived problems with the H-1B visa.  One group of Senators, led by Sen. Orin Hatch (R-UT), recognizes the obvious: that the H-1B visa quota is an enormous hindrance to the US economy.  Sen. Hatch’s solution is to increase the quota while maintaining protections for US workers.  Sen. Hatch’s bill, the I-Squared bill, has support from Senators in both parties, with co-sponsorship from eleven different Senators.  It is the rare piece of legislation that has support from a diverse group of Senators. 

This sensible coalition recognizes that an increased H-1B visa cap is necessary.  There is no real evidence that the H-1B drives down US workers’ wages.  

The other side of the debate is spearheaded by Sen. Grassley (R-IA), with Sen. Jeff Sessions (R-AL) riding alongside.  Neither Senator is actually interested in getting legislation passed, as evidenced by the fact that neither has actually introduced any legislation.  They are only interested in rabble rousing.  Earlier this week, they held a hearing on the H-1B visa, which amounted to nothing. 

Sen. Grassley's plan seems to be able to force amendments to the I-Squared, whose support is growing.  He has done this many times in the past.  These amendments will only increase the regulatory and legislative headaches that lawful staffing companies already face.  The companies that take advantage of loose enforcement will continue to do so.  

It is in the Senator's best interest to keep the H-1B bill alive and well.  How else can he tell the protectionists how bad it is?  

HISTORICAL H-1B USAGE

This year’s H-1B filing date of April 1, 2015 is coming fast.  MU Law predicts that the USCIS may see 200,000 H-1Bs filed this year, more than double the Congressional cap of 85,000.  When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as slots available..

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists,Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* 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

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 3, 2007
H-1B 2008 (FY 2009)	85,000	April 7, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 5, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015 (expected)

APRIL 2015 VISA BULLETIN

The Department of State has just released the April 2015 Visa Bulletin. This is the seventh Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014. There is once again very positive news for many immigrant visa categories.
The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date. These are all now at October 2014, which is the closest to current they have been in many years. This is yet another large progression in dates.
India EB-2 climbed forward steadily as well. It has moved to September 2007, representing a 2 and a half year increase in the last three months. 

Chinese numbers righted themselves. For two years the Chinese EB-3 has been more favorable than Chinese EB-2. With this Visa Bulletin, Chinese EB-2 is now the better date.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01APR11	01SEP07	C	C
3rd	01OCT14	01JAN11	08JAN04	01OCT14	01OCT14

USCIS H-1 NURSE MEMO REISSUED: ANOTHER MISSED OPPORTUNITY

In July 2014, the USCIS published and released a Memorandum aimed at clarifying the USCIS’ position on the approvability of H-1B Registered Nurses.  The Memorandum updated the long-standing 2002 Johnny Williams USCIS Memorandum on the same subject.  The July 2014 Memorandum did not provide any substantive guidance beyond than the 2002 Williams Memorandum.   It paid lip service to the idea that USCIS officers should remember that, “there are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation”.

Oddly, the July 2014 Memorandum disappeared from the USCIS’ website shortly after publication.  Some practitioners hoped that that USCIS had reconsidered the Memorandum and would issue a Memorandum that provided concrete instruction and examples.

Unfortunately, the USCIS has finally republished the Memorandum.  It is identical to the July 2014 Memorandum, except the date of the Memorandum is now February 18, 2015.

An article that MU Law posted in July 2014 includes a link to the July 2014 Memorandum and an analysis of the missed opportunity.  Rather than restate the arguments that we made in that article, we will just point you there.

H-4 EAD FAQ

Starting May 26, 2105, certain H-4 spouses of H-1B holders can file for an Employment Authorization Document (EAD).  The full regulation has just been published. 

Musillo Unkenholt has had many questions from clients and friends of the firm.  We have published these in this FAQ.

Can I file before May 26, 2015?

No.  The USCIS will not accept EAD applications until May 26, 2015.

How long will it take the USCIS to process the EAD Application?

Traditionally EAD Applications take 90-120 days until approval.

Can I work upon the filing of the EAD Application?

No.  The EAD must be approved?

Who qualifies for the new H-4 EAD card?

Certain H-4 spouses may file for the new H-4 EAD.  Children who hold H-4 status are ineligible for the EAD.

Which H-4 spouses may file for an EAD?

In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first set forth in Section 106 of AC21.  The H-1B worker must either:

A.  Hold an approved I-140, Petition for Alien Worker.  The approved I-140 does not need to be from his present employer; or

B.  Have a priority date that is at least one year old.  A priority date can be established by the filing of a PERM Application or a Form I-140.

May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?

No.  The USCIS looks to the H-1B worker to meet A or B, above.  It is irrelevant if the H-4 meets A or B.

Are there any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?

No.  There are no such limitations.  You can work for any employer, at any rate (above minimum wage), and in any occupation.

What should I do if I want to file an H-4 EAD?

EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process.  If you would like MU Law to help, please contact us.

H-4 EAD RULE IS EFFECTIVE MAY 26

USCIS has just announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.

NON-IMMIGRANT MAINTENANCE OF STATUS: F-1 & PERIODS OF AUTHORIZED EMPLOYMENT

Generally, all persons in a non-immigrant classification are required to maintain their immigration status for the duration of their stay in the U.S. This issue is of particular importance as we approach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrant status must demonstrate compliance and maintain status at the time of the H-1B filing. Failure to maintain the status can cause a denial in the prospective employee’s H-1B petition.

More recently, the USCIS has narrowly focused on F-1 students and particularly whether the student maintained status during any period(s) of authorized employment. The authorized periods of employment may include any work performed while engaged in Optional Practical Training (OPT) or Curricular Practical Training (CPT).

There are 4 primary characteristics that serve as evidence of the student’s maintenance of status while engaged in OPT/CPT:  

1. The student was enrolled full-time each semester;
2. The student was engaged in full-time employment while on OPT/CPT (or part-time work if so designated on the SEVIS Form I-20);
3. The CPT was an integral part of the student’s degree program; and  
4.  The student engaged in CPT work after completing 1 year of academic studies. 

In their discretion, the USCIS can request for additional clarification of the student’s academic and employment history. And ultimately the agency can issue a denial of the H-1B petition when the evidence provided deviates from the above mentioned characteristics.    

PREDICTING THE VISA BULLETIN FOR 2015

AILA regularly checks in with Charlie Oppenheim, who is the Department of State’s guru on Visa Bulletin numbers.  Their most recent Check In with Charlie contains projections for 2015.  Here are his projections for several major visa categories.

India EB-2.  This category had stagnated for a long time until the recent March 2015 Visa Bulletin that progressed the date by 16 months, to January 2007.  Charlie expects that India EB-2 will continue to progress at a very steady rate in the upcoming months.

Philippines EB-3.  Demand for Philippine EB-3 remains lower than expected, which is good news for those in this category.  He does not see the demand on the horizon, which leads to his projection that Philippine EB-3 should run parallel to Worldwide EB-3.  He cautions that if the nursing demand returns, a correction may be required for this category.

Worldwide EB-3. The Worldwide EB-3 has advanced in the past few months in order to spur demand.  If the demand continues to stay soft, the progressions will continue.  If the demand picks up, the Worldwide EB-3 number will slow down.

China EB-2 and EB-3.  Low demand for Chinese family-based visas has buoyed the China EB-2 and EB-3 categories.  The EB-2 continues to run behind the EB-3 category, although the gap between the two appears to be tightening. 

MARCH 2015 VISA BULLETIN

The Department of State has just released the March 2015 Visa Bulletin.  This is the sixth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  This is one of the most favorable Visa Bulletins in years and likely reflects the decreased demand for US visas during the recession.

The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date.  These are all now at June 2014, which is the closest to current they have been in many years.

India EB-2 had a jump in dates as well.  It moved to January 2007, representing a 2 year increase int he last two months.   Even India EB-3 reached a milestone, progressing into 2004.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01SEP10	01JAN07	C	C
3rd	01JUN14	22OCT11	01JAN04	01JUN14	01JUN14

POSSIBLE LEGISLATION: THE STARTUP ACT

A new bill called “The Startup Act” was introduced in the Senate last week to benefit immigrant entrepreneurs and those in the STEM (Science, Technology, Engineering, and Mathematics) fields.  The Startup Act states that new companies create jobs in the US and that entrepreneurs must be free to work in the US and to hire employees to get the US back to work.

The Startup Act offers the following three key benefits:

1.       Conditional Permanent Residency for Those in STEM Fields.

Aliens holding a master’s or doctoral degree in a STEM field from a US institution can apply for Conditional Permanent Residence (CPR) for up to one year after their F-1 studies conclude.  CPR is a temporary green card, valid for a limited period of time and contingent on the green card holder completing certain required actions.  At the end of the temporary green card validity period, the applicant must have completed the required actions to obtain a permanent green card, valid for ten years.

To qualify for CPR under this part of the Startup Act, the applicant must be “diligently searching” for an opportunity to become gainfully employed in a STEM field occupation.  The alien can be granted CPR for up to five years and can remove the conditions and obtain a permanent green card, or naturalize and become a US Citizen after the five year period, provided the applicant has been employed in a STEM occupation for the duration of the five year period.

2.       Conditional Permanent Residency for Entrepreneurs.

The Startup Act provides that immigrant entrepreneurs can be granted CPR for up to four years.  The CPR holder is eligible to apply for a permanent green card if:

·         the alien holds F-1 or H-1B status

·         during the first year of the CPR, the alien

o   registers a new business in the US

o   the alien’s business employs at least full-time employees who are not members of the alien’s family

o   the alien invests or raises capital of $100,000

·         during the remaining three years of the CPR, the alien employs at least five full-time employees who are not members of the alien’s family

3.       Elimination of Per Country Caps and Rollover of Unused Green Cards.

Finally, the Startup Act phases out the per country caps on green cards over a three year period.  It also provides for the rollover of unused green cards.

KNOWN EMPLOYER PROGRAM FOR CANADIAN COMPANIES

By late 2015, The Department of Homeland Security (DHS) is expected to launch a test program with the Canadian government. The initiative is designed to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers. Essentially, the goal is to aid U.S.– Canada business travel.  

The pilot program emerged under the U.S. and Canada Beyond the Border initiative. The latter allows both countries to work together to address threats within, at, and away from their borders, while expediting lawful trade and travel. And in doing so, the pilot program furthers the binational commitment under the North American Free Trade Agreement.

The Known Employer program will facilitate legitimate cross-border business travel along the northern border ports of entry. Specifically, the program targets to: 

• Make adjudications more efficient and less costly.
• Reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.

This is not the first program of its kind. The DHS has initiated a trusted employer concept in the Philippines with its Priority Interview Program and  Business Executive Program in India.