DOS ADDRESSES EB-3 PHILIPPINES AND INDIA VISA BULLETIN RETROGRESSION

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

EB-3 Philippines

The expectation is that Philippines EB-3 VB date will continue to advance a few months at a time, consistent with movement over the past few months.  He “hopes” that the date will progress into mid-2010 before the end of this fiscal year in September 2016.

There are currently about 4,200 immigrant visas in the pending demand file.  The Texas Service Center has 1,600, the Nebraska Service Center has 1,200, and the US Consulate in Manila has 1,400.

Charlie expects EB2 Philippines to be current for the foreseeable future.

EB-2 and EB-3 India

Both India EB-2 and EB-3 will move slowly forward, although because of unusual demand for EB-1 it is difficult for Charlie to accurately predict movement in these categories.  Normally, light demand for EB-1 numbers means that unused EB-1s trickle down into the EB-2 category.  The government is also seeing increased upgrade demand, where previously approved EB-3s are now being re-field as EB-2s.

New Final Action Date for EB-4 for El Salvador, Guatemala and Honduras

The usual sight of these countries appearing on the Visa Bulletin is because of demand for EB-4 Special Immigrant Juvenile (SIJS) applicants.  While this means retrogression for these categories, it should have no impact on the traditional EB-1, EB-2, or EB-3 categories in other countries.

EB-2 and EB-3 China

It will likely be necessary to retrogress these categories due to increasing demand for these immigrant visas.

USCIS CONFIRMS 236,000 H-1B PETITIONS WERE FILED

USCIS announced on April 7, 2016, that it has received 236,000 H-1B cap-subject petitions, which is slightly more than the 233,000 H-1B cap-subject petitions that were received in 2015.  USCIS is in the process of running the H-1B lottery.  USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

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;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

MAY 2016 VISA BULLETIN

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

May 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	01SEP12	22NOV08	C	C
3rd	15FEB16	15AUG13	01SEP04	15FEB16	01AUG08

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains at Feb 15, 2016, jsut as it was last month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Neither Chinese category moved this month.  This May Visa Bulletin included a note on Chinese EB categories:

CHINA E3:  There has been an extremely large increase in Employment Third preference applicant demand in recent weeks.  This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference.  This has resulted in the Third preference final action date being held for the month of May.  Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.

India: EB-2 and EB-3 moved ahead a few weeks.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by 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	01JUN13	01JUL09	C	C
3rd	C	01MAY15	01JUL05	C	01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 

USCIS REACHES FY 2017 H-1B CAP

In a surprise to no-one, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap of 85,000 visas for fiscal year (FY) 2017.

As in the last few years, USCIS will use a computer-generated process (H-1B lottery) to randomly select H-1B petition “winners”.  The agency will reject and return filing fees for all unselected cap-subject petitions.

USCIS’ press release indicates that it cannot yet determine when it will conduct the random selection process.  USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 11, 2015.

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.

Likewise, H-1B extensions and amendments are also not subject to the H-1B cap.  MU Law recently posted a blog on alternatives to the H-1B cap, which you can access here.

OPTIONS IF YOU LOSE THE H-1B LOTTERY

The H-1B cap opened on April 1, 2016.  On April 7, 2016, or shortly thereafter, the USCIS will announce that it has received more than 85,000 H-1B petitions, which is the H-1B cap limit.  MU Law believes that the USCIS will reports that at least 200,000 H-1B petitions will have been filed, and perhaps as many as 250,000.  As a result, the USCIS will hold an H-1B lottery.

The H-1B cap is clearly a drain on the US economy.  Nonetheless, until Congress acts to help the American economy and raises the H-1B cap, the H-1B lottery will result in many otherwise qualified H-1B workers having to consider alternative visa options. Here are some options:

• Those that have had an H-1B in the past are often not counted against the H-1B cap.  If you have had an H-1B approved in the past, you should contact your attorney, even if you have never entered the US and activated the H-1B.

• H-1B cap-exempt employers can file for H-1Bs at any time.  An H-B cap-exempt employer is (1) a University; or (2) a non-profit that is related to a University, such as a University Hospital; or (3) A Non-Profit research organization; or (4) A Non-Profit government research organization.

• Nationals of these countries have alternative visa categories that are similar to the H-1B, but are not subject to the H-1B cap: Canada, Mexico, Australia, Chile, and Singapore.  If you hold a passport from any of these countries you can seek a visa such as a TN-1, E-3, or H-1B1.

• OPT for F-1 Students.  The F-1 rules liberally allow students to work in the US.  Many students can now work for 24 month, after their graduation from a US college.

• Green Card filings can often be done quickly.  All categories except India EB-2, EB-3, China EB-2, EB-3 and Philippine EB-3 have very favorable processing times.  Most applicants who qualify for categories other than these should expect their green cards in 12-18 months.

• The L-1 visa (Multinational Executive, Managers, and Specialized Knowledge workers), the O-1 (Extraordinary Ability) and the E-1/E-2 (Treaty Trader and Treat Investor) offer some options for high level and critical employees. 

NEW USCIS MEMO: PORTING YOUR I-485 UNDER AC21

On March 18, 2016 the USCIS issued new guidance regarding when a foreign national can port his/her I-485.  Under the American Competitiveness in the Twenty-First Century Act (AC21) a foreign national can change his/her employer or job during the green card process once the I-485 has been pending for 180 day or more.

When changing positions, the green card applicant and their new employer, must file a letter with the USCIS confirming the new employer is taking over the green card case, agrees to pay the prevailing wage, and that the new position is the same or similar to the position described in the green card application.

The USCIS will consider the totality of the circumstances when determining if the green card job and the new job are the same or similar.  Specifically, the March 18 memo describes how Immigration Officers can review the occupation codes assigned to both jobs by the Department of Labor when determining if the two jobs are the same or similar.

Evidence that the positions are the same or similar can include:

• The job duties of both positions;
• The skills, expertise, education, training, licenses or certifications specifically required to perform each job;
• The wages offered for each job; and
• Any other material and credible evidence relevant to the determination.

Green card applicants can also port their I-485s when, in their new position, they are primarily responsible for managing the same or similar function of their original job.  For example, if a PT is promoted to Senior PT and supervises other PTs and PTAs.  It is also acceptable for the applicant to manage workers in a different occupation if the change in position is a normal career progression.  For instance, if an OT is promoted to Rehab Manager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs, and others.

LAST CHANCE FOR 2016 H-1Bs

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Thursday 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, 2016, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.  
-Last year it was until June before most H-1B lottery winners and losers found out about the outcome of their lottery selection. 

HISTORICAL H-1B USAGE AND AN EDUCATED GUESS ON HOW MANY WILL BE FILED THIS YEAR

This year’s H-1B filing date of April 1, 2016 is coming fast.  MU Law predicts that H-1B petitioners certainly will file in excess of 200,000 petitions during the H-1B cap window of April 1-7, 2016.   Last year’s record filing total of 233,000 will likely be exceeded.  This estimate is based on conversation with clients, other employment-based immigration attorneys, and economic trends, such as the tiny unemployment rate in IT.

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 three times 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 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 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 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016 (expected)

OPT STEM EXTENSIONS NOW 24 MONTHS

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months.

STEM OPT Extensions are available to students completing a degree in the science, technology, engineering, or mathematics fields at US colleges or universities in F-1 status.  A list of degrees eligible for STEM Extensions is available on the Immigration Customs and Enforcement website.

In August 2015, the US District Court judge ruled that the USCIS STEM OPT Extension program was invalid because the USCIS had not followed the proper procedure when creating the STEM Extension program in 2008.  The federal judge allowed the USCIS time to re-create the program using the proper procedure. 

The USCIS has now re-created the STEM Extension program using the proper procedure and has extended the length of the STEM Extension from 17 months to 24 months.  The new STEM Extension rules also include the following:

·         Employers participating in the STEM Extension program must incorporate a formal training program that includes concrete learning objectives with proper oversight.

·         All STEM employers taking part in the program must also participate in e-verify.

·         Students must work at least 20 hours per week per employer to qualify for STEM Extensions.

·         Students are now permitted a total of 150 days aggregate unemployment while on OPT.  Students continue to be permitted 90 days aggregate of unemployment during the initial period of OPT.  Students are now permitted an additional 60 days of unemployment during the STEM OPT Extension period. 

The Immigration Service has also created a STEM OPT Hub website which includes resources for schools, students, and employers to assist in the transition from the old STEM OPT program to the new STEM OPT program.  

APRIL 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

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

April 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	01SEP12	08NOV08	C	C
3rd	15FEB16	15AUG13	08AUG04	15FEB16	01MAY08

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains positive, gaining 6 more weeks this month.  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 by about two years in just the last few months.  This is great news for this category.  EB-2 continues to lag behind EB-3.  The DOS expects the EB-2 and EB-3 to re-balance at some point in the future.

India: EB-2 moved ahead about 3 weeks to November 2008. Six months ago it was 01MAY05. This represents a three-and one half year movement in just six months.  This trend may continue. EB-3 moved three 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 almost two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move 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	01JUN13	01JUL09	C	C
3rd	C	01MAY15	01JUL05	C	01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 

IS DONALD TRUMP FOR OR AGAINST THE H-1B ?

This was first posted on the AAIHR blog.

The H-1B is the main US professional visa.   H-1B visa demand follows the US unemployment rate.  When the US unemployment rate is high and many US workers are out of work, H-1B demand is low.  When the US unemployment is low and many US workers are employed, H-1B demand is high.

Last year 232,000 H-1B petitions were field on the first and only day of the H-1B cap window.   This resulted in an H-1B lottery, whereby USCIS rejected 64% of otherwise approvable H-1B petitions.  On the other hand, at the height of the US recession in 2010 it took about 300 days for the H-1B cap to reach the statutory limit of 85,000. 

The tech industry is the largest user of H-1B visas.  Stories of H-1B abuse plague the industry.  Notably Disney has been sued by American workers who claim to have been forced to train the H-1B replacements. 

The healthcare industry uses H-1B visas too, although at much smaller rates that tech in spite of the fact that the shortages of US labor in these occupations are greater than in IT.  Physical Therapists and Occupation Therapists qualify for the H-1B.  The US Department of Labor has repeatedly found that the importation of these Registered Nurses and Physical Therapists does not negatively impact the working conditions or salaries of US workers. 

With each Republican Presidential caucus or primary, Donald Trump is inching closer to the Republican nomination.  His positon on the H-1B visa appears to be fluid.  For months he has generally disfavored any increase in visa quotas.  In particular he has aimed his glare at the alleged abuses in the IT industry. 

It was newsworthy then at the Thursday March 3 debate when Trump announced, “I’m changing,” in response to a question about his H-1B position.  After being pressed by moderator Megyn Kelly, Trump fleshed out his new position, “I'm softening the position because we have to have talented people in this country."  This statement appeared to indicate the Trump would be in favoring of allowing foreign-born US college graduates a path to work authorization. 

The “softening” of his stance is not without controversy.  In response, it appears that Trump may now have dialed back his “softening” and is now staking a middle position.  Shortly after the debate, he reiterated his promise to end “abuse” in the H-1B system. 

Perhaps Trump is playing politics.  One view is that Trump may think that he has the Republican nomination in hand and is therefore tacking toward the center.  This is a strategy that Republicans have used for a generation, ever since it was famously executed by then-candidate Richard Nixon.

A move to the center may mean that Trump would be willing to work with a healthcare industry that has giant supply shortages on the horizon and little hope to curing the shortages with US labor.

MU LAW COMMENT TO USCIS: ALLOW H-1Bs WHEN APPLICANT HAS HEALTHCARE WORKER CERTIFICATE

The USCIS and Department of Homeland Security recently issued a lengthy proposed rule. As per US law, USCIS and DHS had to ask the public for our comments about their proposed rule.  Many lawyers and the public commented on the proposed rule.

The proposed rule covers many areas.  Musillo Unkenholt's comments focused on one area: asking DHS to allow one-year H-1B approvals in instances where the alien does not hold a license, but does hold a Healthcare Worker Certificate.

The most common Healthcare Worker Certificates are Visa Screen, FCCPT Type 1 Certificates and NBCOT Certificates.

Click here to read our complete comment

The Musillo Unkenholt comment is also on Regulations.gov.