MONTHLY VISA BULLETIN PROJECTIONS: PHILS EB-3 TO ADVANCE INTO 2014

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.  

This month’s Check In With Charlie featured predictions about EB2 and EB3, which are the most popular categories for readers of this Blog.  Here are some of this month’s highlights:

Philippine EB-3 – As with last month, Charlie again offered his most optimistic predictions for this category.  He said that he expects predicts future advancement at a pace of “up to six months.” He expects that the Philippine EB-3 date should quickly move through 2012 and 2013, and quickly move into 2014.  This is consistent with internal MU Law analysis, which sees this category progressing at least into 2013 by the summer of 2017.  

India EB-2 – Charlie hopes that the India EB-2 category can progress at a pace of “up to one month.”  He cautions that an increase in EB-3 upgrades could slow the progression of India EB-2.

India EB-3 – There was no specific comment by Charlie.  MU Law expects that India EB-3 will progress at about the same 1-2 week rate as it has in prior months.  The India EB-3 date may stall/stop in the summer of 2017, as the full allotment of numbers gets used.  It will then recommence in October.  This is normal.  It happens every year.  Read our FAQ on why the Visa Bulletin progression stops in August and September.

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future.  Worldwide EB-3 will continue to move ahead steadily and be effectively current.

China EB-2 and EB-3 – These categories are the most difficult to predict because of the upgrade/downgrade phenomenon of EB-2 and EB-3.  At present China EB-3 is 15 months ahead of EB-2.

SEN. HATCH OFFERING BILL TO INCREASE H-1B CAP

Computerworld is reporting that Sen. Orrin Hatch (R-UT) is preparing an H-1B bill, which could raise the H-1B cap as high as 195,000 visas.  The current H-1B cap ceiling is 85,000, of which 20,000 are reserved for graduates of at least a US Master’s degree program. 

Sen. Hatch’s bill reportedly is an update of his 2015 I-Squared Bill.  The I-Squared bill was first offered in 2013.  The 2015 bill contained many excellent provisions for the IT industry and H-1B employers.  It remains to be seen which of these provisions will be in the 2017 version of the bill.  Sen. Hatch is to be applauded for his long-standing belief in the employment-based immigration system and the contributions made by employment-based visa holders.

The 2015 bill included these provisions:

-provided H-4 spousal work authorization.

-reduced the ability of the USCIS to issue harassing H-1B RFEs.

-gave an H-1B worker a 60 day grace period at the conclusion of H-1B status.

-allowed H-1B, L-1, O-1, E-1, E-2, and P-1 visa holders the ability to have their visas extended in the US.

-increased green card numbers.

-eliminated the per-country immigrant visa quota.

-created funding for US training programs in STEM fields by increasing USCIS filing fees.

PRES. TRUMP'S EXECUTIVE ORDERS: FACT OR FICTION

There are a lot of rumors surrounding President Trump's Executive Orders.  Below is MU Law's list of Facts and Fictions.  Please note that this list is as of this morning, but that things are changing quickly.

FACT: In late January, President Trump issued an Executive Order banning entry to the US for individuals from Iraq, Iran, Yemen, Syria, Somalia, Sudan, and Libya.  The travel ban included all individuals from the seven listed countries holding a US visa, but did not include green card holders or dual nationals.

FICTION: President Trump is planning to add countries to the list in the travel ban.  On February 3, 2017, the American Immigration Lawyers Association (AILA) issued a statement indicating the US Department of State had contacted AILA and said that there was no plan to add to the list of banned countries.

FACT: On Friday, February 3, 2017, a Federal Judge in the state of Washington issue a Temporary Restraining Order (TRO) stopping the enforcement of the travel ban.  The US Department of State reinstated previously cancelled visas allowing individuals from the banned countries to travel to the US.

FICTION: The travel ban has been struck down and will not be reinstated.  The TRO issued by the Judge is temporary and lasts only while the case against the travel ban is going through the court system.  Many Federal Judges have been issuing rulings on the travel ban and these rulings conflict with each other.  It is unknown whether the case will go before the US Supreme Court or whether the President will issue a revised Executive Order.

FACT: President Trump may change the way the H-1B cap cases are allocated.  The President, by Executive Order, can change the manner in which the H-1B cap works from a straight lottery to a preference system.  Should this change take place, it is likely that the preference system would favor those with advanced degrees, higher wages, and shortage skills.

FICTION: President Trump is planning to or has already eliminated H-1Bs visas.  The President, on his own, cannot cancel the H-1B visa program.  H-1Bs were created by an Act of Congress and it would take an Act of Congress to cancel H-1Bs completely. 

FACT: There will likely be greater requirements for H-1B employers.  Most recent proposals from Congressional Representatives and from the President include additional burdens and restrictions on H-1B employers.  These restrictions include: paying higher wages to H-1B employees, documenting the employer has tried to recruit US workers before filing the H-1B, more site visits, and expansion of e-verify.

FICTION: President Trump has eliminated the H-4 EAD.  The H-4 EAD program was created in a regulation.  At this time, the President has made no formal indication that he plans to rescind the H-4 EAD regulations.

FACT: President Trump may be planning to cancel DACA, the program allowing undocumented immigrants, brought to the US as children, to obtain a stay of deportation and work authorization.  DACA was created by an Executive Order of President Obama.  A draft Executive Order of President Trump eliminating DACA has been circulated.  At this time, DACA remains in effect.  

MARCH 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2017 Visa Bulletin.  This is the sixth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

March 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15DEC12	01JUN08	C	C
3rd	01DEC16	15MAR14	22MAR05	01DEC16	15MAR12

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues, moving an additional two months.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date again moved up one month. The China EB-3 date progressed nearly six months!  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India moved up about 6 weeks, while EB-3 India stayed the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly six more months.  The Philippine EB-3 number essentially cleaned out all 2010 and 2011 EB-3 visas in less than 6 months months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

____

The Visa Bulletin also included projections for the next several months of Visa Bulletins.

EMPLOYMENT-based categories (potential monthly movement) 

EB-1:   The category will remain “Current”.

China and India: A Final Action Date is likely to be imposed by August. 

(MU Law note: this is not unusual and happens most years.  This should not concern anyone.) 

EB-2:

   Worldwide:  Current

   China:         Up to five weeks.

   India:          Up to one month.  

EB-3:

   Worldwide:  Up to three months. 

   China:         Up to six months.

   India:          Extremely limited forward movement.

   Mexico:        Will remain at the worldwide date.

   Philippines:  Up to six months. 

TRUMP "MUSLIM BAN" LIFTED TEMPORARILY

Over the weekend a federal court in the State of Washington stopped President Trump’s three part ban on immigration of certain nationals.  This Judge’s Temporary Restraining Order was affirmed by an appellate court shortly thereafter. 

Because this TRO is temporary, MU Law urges all nationals in the three classes listed below immediately to attempt to enter the United States.  The TRO could be rescinded at any time. If the TRO is rescinded, the ban will go back into effect, in part or in whole.

The three classes of individuals impacted by the ban:

•   Barring nationals of seven countries from entering the US for 90 days.  The seven countries are: Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen.  These nationals are barred regardless of whether they have cleared background checks and hold valid nonimmigrant (temporary) or immigrant (permanent) visas.

•   Suspending the U.S. Refugee Admissions Program (USRAP) for 120 days.  This provision also says that once the 120 day period has ended, that the US government must prioritize refugee claims “made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”  Since Islam is the majority religion in many countries, this provision appears aimed at prioritizing Christians’ refugee claims, which President Trump has stated is one of his goals. 

•   Permanent suspension of all Syrian refugees until such time as President Trump sees fit to lift the permanent ban on Syrians.  

TRUMP EXECUTIVE ORDER

On Friday, January 27, 2017, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 

Among other provisions, the Executive Order suspends entry of nationals from seven designated countries for 90 days from the date of the order.  These seven countries are:

-          Iran

-          Iraq

-          Libya

-          Somalia

-          Sudan

-          Syria

-          Yemen

The order does not define what “from” one of the seven designated countries means.  Due to the vagueness of the order, it is best to interpret “from” as including passport holders, citizens, nationals, and dual nationals from these seven designated countries.

There is an exception for refugees that were in transit to the US at the time the order was issued.  In addition, the Secretary of the Department of Homeland Security (DHS) announced on Sunday that Legal Permanent Residents (green card holders) would be able to enter the US, absent significant derogatory information indicating the green card holder posed a threat to US national security.

After the 90 day ban, travel is not automatically reinstated.  The US DHS is required to report whether countries have provided information needed to determine that the foreign national(s) is not a security or public safety threat. 

Several court cases have been filed challenging the President’s Executive Order.  These court cases have generally been decided against the order, but none of the cases have specifically struck down the order.  Reports indicate that each US airport is enforcing the President’s Executive Orders differently.

Please note that the situation is fluid and may change at any time.  If you have specific questions about your case please contact your MU attorney.

GRASSLEY, DURBIN REINTRODUCE H-1B BILL

Sens. Grassley (R-IA) and Durbin (D-IL) have reintroduced their H-1B bill.  They have introduced a version of this bill for the last several Congressional sessions.  The last version of the bill only attracted 5 co-sponsors, and never had any significant traction in Congress.  This term, competing and related House bills have been offered by Rep. Issa and Rep. Lofgren. 

It remains unclear how this one differs, if at all, from the last versions, since the text of the bill has not yet been released.  The last version of the bill included several significant changes to the H-1B process.  That bill creates a preference system for the H-1B lottery, which prioritized H-1B workers in this order:

• Masters (or greater) degree in STEM from a US university
• Companies who offer a Level 4 wage for that H-1B worker
• Masters (or greater) degree in any other major from a US university
• Companies who offer a Level 3 wage for that H-1B worker
•  Bachelor’s degree in STEM from a US university
• Bachelor’s degree in any other major from a US university
•  Schedule A occupation
• Good corporate citizens

Other components of the bill included:

• H-1Bs must pay at least a level 2 wage for all H-1Bs
• Require a posting on USA jobs.gov for 30 days prior to filing an H-1B
• Employer must certify that no US worker has been displaced and that the employer has attempted to recruit US workers
• 50/50 employers are barred from the H-1B process
• H-1B limited to 3 years, unless the H-1B worker has an approved I-140
• Additional burden for employers who place workers at third-party worksites.
• Increased investigative power for DOL
• Changes to the L-1 program

VISA BULLETIN: "CONSISTENT FORWARD MOVEMENT” EXPECTED FOR PHILS EB-3

The Department of State’s Visa  Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.  This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog.  Here are some highlights:

Philippine EB3 – Charlie again offered his most optimistic predictions for this category.  He said that he expects “consistent forward movement” in the EB-3 Philippines category.  While he does not expect the Philippines EB-3 to catch up to the Worldwide date, he expects Philippines EB-3 to “recover significantly”.  This is consistent with internal MU Law analysis, which sees this category progressing at least into 2013 by the Summer of 2017.  

India EB2 and EB3 – Unfortunately the news is not so rosy for Indian nationals.  Neither EB2 nor EB3 is expected to progress to any significant degree. 

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future. It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.  The Worldwide EB-3 date may stall in the Spring/Summer of 2017, as the full allotment of numbers gets used.  It will then move quickly again into the next fiscal year.

China EB-2 and EB-3 - These categories are the most difficult to predict.  The DOS is trying to be conservative in the forward progression of these dates in an effort to stop the see-saw progression and retrogression of dates that we have seen in the recent past.

MU LAW, AAIHR, AILA SUCCESSFULLY RESOLVE MANILA POST PROBLEMS

For much of the second half of 2016, the US Embassy at Manila has been delaying Visa appointments because of a bad interpretation of law.  Through the combined effort of MU Law, AAIHR, and AILA, it appears that the Manila Post will no longer incorrectly interpret these visa applications, which should lead to speedier visa issuance.

The Manila Post was incorrectly readjudicating previously approved green card applications.  In some instances, these applications were several years’ old.  The Post would often ask for updated prevailing wage determinations, posting, and labor certifications.  MU Law and the AAIHR, through AILA and other communication channels spent much of the second half of 2016 explaining in detail why these readjudications were contrary to law.  These interpretations were limited to the Manila Post.  Other Posts were not readjudicating these types of applications.

The Post has confirmed that they agree with our legal position and will no longer readjudicate these applications.  The Post has also set out a framework to prioritize these types of matters.

In the last week or two, MU Law has noticed that visa application delays have ceased, which likely is the result of this Manila Post policy change.  MU Law commends the Manila Post on its willingness to dialogue on this issue.

H-1B & TRUMP ADMINISTRATION TELECONFERENCE FEB 15, 2017

MU VISA ADVISOR:   

In anticipation of the H-1B cap filing date of April 1, 2017, MU Law will be holding a free teleconference for our clients and friends on February 15, 2017 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, 2017.

We will also have a special update on the new Trump administration.  MU Law's Chris Musillo is traveling to Washington DC in early February.  On this call, Chris will provide an update on what potential changes will be coming to employment-based immigration in light of the new administration.

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?
• Employer-Employee relationships

• Hot issues:  
• Cap-gap for F-1s
• CPT / OPT maintenance
• NIV maintenance
• H-4 EAD rule
• H-1B amendments: lengthy processing times

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

• Legislative Update
•  What we can expect from the Trump administration and the Republican congress.

• Q&A

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

FEBRUARY 2017 VISA BULLETIN: ANALYSIS

The Department of State has just issued the February 2017 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

February 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15NOV12	15APR08	C	C
3rd	01OCT16	01OCT13	22MAR05	01OCT16	15OCT11

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date moved up one month. The China EB-3 date also progressed about one month.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India and EB-3 India stayed virtually the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another three months.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and much of the 2011 EB-2 visas in just five months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

ISSA OFFERS H-1B BILL AIMED AT H-1B DEPENDENT EMPLOYERS

Last week, Rep. Darrell Issa (R-CA) proposed the Protect and Grow American Jobs Act, which has been co-sponsored by Congressman Scott Peters (D-CA).  The bill is aimed at H-1B dependent employers. 

H-1B dependent employers are employers whose workforce is comprised of at least 15 percent H-1B workers.  The 15 percent rule is modified for H-1B employers with fewer than 25 employees. 

“H-1B dependent employers” must make two additional attestations to the USCIS in order to have an H-1B petition approved, above and beyond the usual H-1B requirements and attestations.   

The two attestations affirm that the employer has (i) taken steps to insure that no US workers are being displaced as a result of the H-1B petition and (ii) taken steps to recruit US workers for these positions. 

Under current law, H-1B dependent employers are exempt from these two attestations if they agree to pay the H-1B worker at least $60,000 per year and/or the H-1B worker holds at least the equivalent of a US master’s degree. 

According to his website, Cong. Issa’s bill makes two changes to the law.  The bill raises the first exemption to $100,000 per year and eliminates the master’s degree exemption.  The full text of the bill has not yet been released. 

HIGH-SKILLED WORKER REGULATION SUMMARY

The USCIS recently finalized a new regulation to benefit high-skilled workers which will go into effect on January 17, 2017 – just three days before President-Elect Trump is inaugurated.  The regulation was purposely timed to precede the new Trump administration.  Opinions are mixed on whether the new regulation will stay in effect, or will be immediately revoked or rewritten when President Trump takes office.

Some important highlights of the regulation are:

·         New 60 Day Grace Period.  H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day grace period in the event that the principal visa status holder loses his/her job.  The grace period will allow these nonimmigrant visa holders to remain in the US and find a new job.  The 60-day grace period may be provided to an individual only once per authorized validity period.  An individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications. 

·         Flexibility for H-1B licensed occupations.  The USCIS will approve H-1B petitions for a validity period of up to one year where the applicant can prove that the H-1B employee does not have a US professional license due to the State’s requirement of a social security number, US employment authorization, or a similar technical requirement.  This has been USCIS policy, but is now officially law.   Unfortutnly, the USCIS still has much discretion in this area to interpret local state licensure law.

·         EAD extensions. An EAD will automatically be extended for 180 days, as long as an EAD extension was filed before the expiration of the current EAD.  This will provide needed certainty of continued work authorization.

·         Cap-Exempt Employers. The new rule reworks the H-1B cap-exempt employers rule for employers who are affiliated with an institute of higher education in two ways. 

o   DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.”  This is a less-restrictive standard than the current “primary purpose” rule.  Going forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly contribute to the research or education mission of the institution of higher education.

o   A non-profit that has a formal written agreement that establishes an “active working relationship” with a University, no longer has to have shared ownership and control. This is also a lesser standard than at present.

·         Retention of I-140 in almost all situations.  This new rule clarifies existing USCIS policy that allows Beneficiaries to generally retain their I-140s even if the prior employer revokes the I-140.  This will allow these Beneficiaries to (i) recapture the I-140 priority date in future green card applications and (ii) take advantage of spousal work authorization rules without fear of an underlying I-140 revocation.

JANUARY 2017 VISA BULLETIN: NEWS AND ANALYSIS

The Department of State has just issued the January 2017 Visa Bulletin.  This is the fourth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

January 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15OCT12	15APR08	C	C
3rd	01AUG16	08SEP13	15MAR05	01AUG16	22JUL11

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases an August 2016 date is effectively Current.

China:   The China EB-2 date moved up about one month. The China EB-3 date progressed three months.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India had another impressive progression from last month, moving forward two months.  EB-3 stayed the same unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another seven weeks.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just four months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

NEXT DHS SECRETARY: McCAUL OR KOBACH ?

President-elect Trump has spent much of the last few weeks vetting potential cabinet members.  Many of the higher profile positons have been named, such as Attorney General (Alabama Republican Senator Jeff Sessions) , Secretary of Defense (Ret. Gen. James Mattis), and UN Ambassador (South Carolina Republican Governor Nikki Haley).  It is expected that he will name a Secretary of State shortly.

The President-elect has not yet tipped his hand on who will be the Secretary of the Department of Homeland Security.  The DHS secretary positon is important because this positon sets DHS policy interpretations for H-1Bs and other employment-based nonimmigrant visas and employment-based green cards.

Two candidates seem to be leading the race to be Secretary of the Department of Homeland Security: Kansas Secretary of State Kris Kobach and Texas Rep. Mike McCaul.  The betting markets have Kobach slightly ahead.  While the betting markets are good indicators, they are not guarantees of future outcomes. 

Rep. McCaul probably would be the better choice for employment-based immigrants and employers.  In the mid-2000s, Rep. McCaul co-sponsored and supported several bills aimed at increasing the H-1B cap and increase employment-based green cards.  On the other hand, many immigration hardliners favor Kobach.