DO ADVANCE PRACTICE NURSES QUALIFY FOR THE TN-1 ?

There is a mystery afoot at the northern border.  Last week reputable news organizations, such as the CBC, reported that advance practice nurses were being told that they no longer qualified for the TN-1 visa at the Canadian-Michigan border. 

The TN-1 visa is a visa authorized under NAFTA.  All of the jobs on the NAFTA occupations list are eligible for TN-1 visas.  The NAFTA list is purposely vague.  It does not list job descriptions for the occupations.  Any rational job description includes advance practice nurses under the registered nurse domain.  For instance, the State of Michigan law on registered nursing, includes advance practice nurses as a subset of registered nurse.  Advance Practice nurses have been using the TN-1 for 20+ years.

US Customs and Border Protection has been silent on the issue.  Immigration attorneys are unsure if the denials are based on one rouge officer’s mistaken understanding of law, or if it is a policy-wide decision.

Either answer is problematic.  If it is a rogue officer, then the US CBP ought to acknowledge their error, re-train the officer, and announce that advance practice nurses are eligible for the TN-1.  

If not, the administration ought to explain the rationale behind its policy-decision.  The administration’s own Department of Labor says that for US workers, ”job opportunities for advanced practice registered nurses are likely to be excellent.”  Protectionism may be a valid policy argument in some areas, but plainly not for advance practice nurses, who are the forefront of treating American patients. 

MU’S MARIA SCHNEIDER NAMED TO CINCINNATI BAR ASSOCIATION BOARD OF TRUSTEES

MU Law is proud to announce that MU Law's Maria Schneider has been named to the Board of Trustees of the Cincinnati Bar Association (CBA).  Schneider’s two-year term will begin on May 1, 2017.  She will be officially inducted at the CBA’s Annual Meeting on April 27, 2017.

Schneider founded, chaired, and now Vice Chairs the CBA’s Immigration Practice Group.  Twice, under Attorney Schneider’s direction, the Immigration Practice Group won the CBA’s Ingenuity Award.  Schneider’s cover article on President Trump’s Executive Orders on immigration will be featured in the CBA Report in April 2017.

The CBA will reach its’ 150^th Anniversary in January 2022.  The CBA Board will focus on “150 Prime,” a five-year strategically eruptive and positively disruptive plan to prepare, engage, envision, and motivate success representing attorneys in the Greater Cincinnati area.  The CBA has 3800 members throughout the Greater Cincinnati community.

H-1B CAP: PAST AND FUTURE DEMAND

This year’s H-1B filing date of April 1, 2017 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, 2017.  Last year’s record filing total of 240,000 may even be exceeded, although we have had reports of reduced demand this year.

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.

The H-1B is usually associated with IT positons.  Most of the H-1B slots are used by IT professionals.  Many healthcare professions also 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
H-1B 2017 (FY 2018)	85,000	April 1, 2017

APRIL 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

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

April 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	15JAN13	22JUN08	C	C
3rd	15FEB17	15AUG14	24MAR05	15FEB17	15SEP12

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 again date progressed nearly six months, just as it did in the March 217 Visa Bulletin.  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 3 weeks, while EB-3 India stayed essentially 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 most of the 2010, 2011, and 2012 EB-3 visas in less than 6  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.").  

PRESIDENT TRUMP’S NEW EXECUTIVE ORDERS

On Monday, March 6, 2017, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”   This Executive Order will go into effect on Thursday, March 16, 2017.  Among other provisions, the Executive Order states individuals from six designated countries who are outside the United States and do not currently have a valid visa are not eligible to travel to the United States for 90 days. 

• Iran
• Libya
• Somalia
• Sudan
• Syria
• Yemen

Please note that Iraq has been removed from the list of countries effected by this Executive Order.  This Executive Order does not apply to:

• lawful permanent residents (green card holders)
• dual nationals who travel to the US on a passport issued by the non-designated country
• individuals who hold a valid visa on the effective date of the Order.  No visas will be revoked.
• foreign nationals traveling on diplomatic visas
• individuals granted asylum or refugee status in the US before the effective date of the order

The US Department of Homeland Security and US Department of State have discretionary authority to issue visas on a case-by-case basis to nationals of the six named countries when denial of entry would cause undue hardship. 

Nationals from countries not named above can travel abroad but should expect additional delays and scrutiny at the airport when re-entering. Please note that the situation is fluid and may change at any time.  If you have any questions, please contact our office.

USCIS SUSPENDING H-1 PREMIUM PROCESSING, STARTING APRIL 3

USCIS will no longer accept Premium Processing Service (PPS) filings for any H-1B petition, starting April 3, 2017.  USCIS says that the suspension could last for 6 months.   PPS will not be available for H-1B cap cases, H-1B cap-exempt cases, H-1B extensions, H-1B amendments, or any other type of H-1B petition.

USCIS claims that by suspending the PPS program for H-1B petitions, it will help them reduce overall H-1B processing times.  

Here is the full press release:

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.
While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.
We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.
We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

• Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
• Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark. 

---

GRASSLEY H-1 BILL INTRODUCED IN THE HOUSE

The H-1B and L-1 Visa Reform Act of 2017, which was proposed recently in the Senate by Sens. Grassley (R-IA) and Durbin (D-IL) has now been offered in the House.  The text of the House version of the bill has not yet been made public but it is expected to mirror the Senate version of the bill.  The House version has four co-sponsors, Bill Pascrell, Jr. (D-NJ), Dave Brat (R-VA), Ro Khanna (D-CA), and Paul Gosar (R-AZ).

The Senate version of the bill has yet to attract many co-sponsors – no Senators have co-sponsored it since the initial four co-sponsors were announced on January 20.  This is not surprising.  The 2015 version of the bill only ever attracted six Senators co-sponsorship.  One of which, Jeff Sessions, is no longer in the Senate and is now the embattled Attorney General.

Nonetheless, Sen. Grassley has long been a foe of the H-1B visa.  While his version of the bill may not get passed into law, it would not be surprising if many of the ideas and concepts that underlie the bill make up a future revision to the H-1B visa.

The press release offered by the four House members says that the bill would modify the H-1B and L-1 visa programs by:

• Requiring employers to make a good faith effort to recruit and hire American workers before bringing in foreign workers and prohibits employers from replacing American workers with H-1B and L-1 workers or giving preference to H-1B visa holders when they are filling open positions.
• Modifying existing H-1B wage requirements, and establishes wage requirements for L-1 workers.
• Prohibiting employers from outsourcing H-1B and L-1 visa holders to other sites unless the employer obtains a waiver which is available only in limited circumstances when the rights of American workers are protected.
• Giving more authority to the Departments of Homeland Security and Labor to investigate fraud and abuse in the H-1B and L-1 programs by requiring the two departments to audit employers and share information, ensuring visa petitions are more effectively scrutinized.
• Prohibiting companies from hiring H-1B employees if they employ more than 50 people and more than 50% of their employees are H-1B and L-1 visa holders.
• Creating a new H-1B visa allocation system that gives top priority to workers who have earned advanced science, technology, engineering or mathematics (STEM) degrees from U.S. institutions.
• Increasing penalties on those who violate the law, and provides visa holders with a list of rights before they enter the U.S. to ensure they are better protected against mistreatment or underpayment of wages.

THE $130,000 MINIMUM H-1B SALARY RUMOR IS FALSE

Over the last few weeks many news outlets have been reporting that the minimum salary for an H-1B worker will rise from $60,000 to $130,000.  This is false.  There is not a minimum floor salary for H-1B workers.  There is no proposal to raise that nonexistent floor to $130,000.

There are proposals that seek to raise the minimum salary floor for companies who seek an exemption to the H-1B dependent attestations.  This is significantly different than minimum floor salary for H-1B workers.

Companies that employ more than 15% H-1B workers (so-called “H-1B dependent employers”) have to make two attestations for employees who either (i) do not earn $60,000 or (ii) do not hold a US equivalent master’s degree. 

Displacement Attestation 20 CFR 655.738: The Displacement Attestation is ensures that U.S. workers are not being terminated or laid off in order to make room for an H-1B worker.  H-1B dependent employers who are seeking to employ an H-1B worker who is to earn less than $60,000 (or does not hold a US equivalent master’s degree) must make the Displacement Attestation.

Recruitment Attestation  20 CFR 655.739: The Recruitment Attestation proves  that an H-1B employer is attempting to make a good faith effort to recruit U.S. workers.  H-1B dependent employers who are seeking to employ an H-1B worker who is to earn less than $60,000 (or does not hold a US equivalent master’s degree) must also make the Recruitment Attestation.

Again, these attestations do not have to be made if the employer offers a salary in excess of $60,000 or if the H-1B worker holds the equivalent of a US master’s degree.

There are two different pieces of proposed legislation that have been introduced into Congress that seek to raise the exemption floor from $60,000.  Rep. Darrell Issa (R-CA)’s proposal raises the $60,000 to $100,000.  Rep. Zoe Lofgren’s bill proposes that the exemption floor could be raised to $130,000.  It is the Lofrgren bill that is the cause of the headlines.

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.