PHILIPPINES REMOVED FROM H-2 VISA LIST

The USCIS has published a notice in the Federal Register announcing changes to countries who are eligible to supply workers pursuant to the H-2 visa program.  The Philippines is no longer one of the countries that is eligible to supply workers under this program. 

This is an annual notice publication that covers the period from January 19, 2019 – January 18, 2020. 

It is important to note that this has no impact whatsoever on Registered Nurses, Physical Therapists, Medical Technologists and other allied healthcare workers.  These healthcare workers are normally filed under the H-1B visa (temporary non-seasonal workers) or Green Cards (Permanent residents).  H-2 visas are normally associated with agricultural workers, trades workers in fields like construction, and other seasonal workers such as those in resorts or the fishing industry.

The rationale for eliminating the Philippines from the H-2 program is explained in the report.  This decision will be revisited in January 2020.

The Philippines has a high H-2B overstay rate. In FY 2017, DHS estimated that nearly 40 percent of H-2B visa holders from the Philippines overstayed their period of authorized stay. Additionally, among all U.S. posts throughout the world, U.S. Embassy Manila issues the greatest number of T-derivative visas (T-2, T-3, T-4, T-5, T-6), which are reserved for certain family members of principal T-1 nonimmigrants (certain victims of a severe form of trafficking in persons). U.S. Embassy Manila issued approximately 40 percent of the total T-derivative visas issued worldwide from FY 2014-2016. A recent review of certain T-1 status recipients, whose spouses were issued T-2 visas during this same period, shows that approximately 60 percent were determined to have been trafficked to the United States on H-2B visas. DHS and DOS are concerned about the high volume of trafficking victims from the Philippines who were originally issued H-2B visas and the potential that continued H-2B visa issuance may encourage or serve as an avenue for future human trafficking from the Philippines. DHS and DOS also believe that these overstay and human trafficking concerns are severe enough to warrant removal from the H-2A visa program as well. This concern is informed by a four-fold increase in H-2A visa applications from nationals of the Philippines between FY 2015-2018. The Philippines' continued inclusion creates the potential for abuse, fraud, and other harm to the integrity of the H-2A or H-2B visa programs.

FEBRUARY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2019 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

February 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01DEC17	08FEB17	08FEB17	01DEC17
EB-2	C	01OCT15	06APR09	C
EB-3	C	01JUL15	22APR09	01AUG17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	01NOV15	22MAY09	C
EB-3	C	01JAN16	01APR10	01OCT17

MU Law Analysis (all references are to Table A unless noted)

All Other: As we expected, the EB-1 category again moved several months.  We expect continued steady movement in this category for All Other.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins.  China EB-2 moved two months.  EB-3 only moved a few weeks, reflecting continued high demand.  Still, we expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: India EB-2 moved by just one week. EB-3 progressed by six weeks.  We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.  We are slightly more optimistic about India EB-3, which could continue to progress faster than EB-2.

Philippines: The EB-3 date showed steady progress, improving by six weeks. Over the course of FY2019, we should eventually see the EB-3 priority date extend into FY2018.

H-1B COMMENT PERIOD CLOSED

Last month USCIS published two proposed rules to the H-1B cap process.  As we noted on December 5, 2018:

 The two rules are:

1.    Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2.    H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

Now that the comment period has ended the USCIS must read and consider all of the comments, which were plentiful.  Many of the comments focused on the fact that rushing this proposal forward for the April 1, 2019 H-1B cap is a bad idea.  MU Law agrees that the USCIS is moving too fast with these recommendations.

The USCIS has not announced a timetable for a decision as to whether the proposed changes will be adopted and, if so, whether they will go into effect for April 2019.  It is however expected that they will make a decision by February.

DENIAL OF “ADVANCED PAROLE” TRAVEL PERMITS FOR ABANDONMENT

During the annual Office of the Citizenship and Immigration Services (CIS) Ombudsman Conference, USCIS Director, Francis Cissna, stated it is the USCIS’s intention to end the practice of denying pending Advanced Parole applications (travel permits) in situations where the applicant travels overseas while the travel permit application is pending. 

The USCIS has recently updated the “special instructions” section of their website regarding travel permits indicating individuals may travel when they have a pending travel permit application pending, provided they also have an approved travel permit that is valid for the entire time the individual is abroad. The pending travel permit will not be considered abandoned and so will not be denied in this situation.

The USCIS website does not state that this change in policy applies to foreign nationals who travel abroad with a valid H or L visa.  Non-immigrant intent is required for most visas, with a noted exception for those holding H-1B or L-1 status.  Because of this exception, those traveling on H-1B or L-1 while their green cards are pending do not need a travel permit.

Travel permit applications are made most commonly when an individual applies for a green card.  At the time the green card application is filed, an application for a work and travel permit is also filed.  Unless the green card applicant holds H or L status, the green card applicant should not travel abroad until the travel permit is issued.  Traveling abroad without a valid travel permit while a green card application is pending will cause the denial of the green card application for abandonment.

JANUARY 2019 VISA BULLETIN

The Department of State has just issued the January 2019 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

January 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01OCT17	15DEC16	01DEC16	01OCT17
EB-2	C	01AUG15	01APR09	C
EB-3	C	08JUN15	01MAR09	22JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01JAN16	01JAN10	01AUG17

MU Law Analysis (all references are to Table A unless noted)

All Other, Mexico: As we expected, the EB-1 category again moved several months.  We expect continued steady movement in this category for All Other.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins. China EB-2 moved two months,

EB-3 did not advance, reflecting high demand.  Still, we expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: India EB-2 and EB-3 did not move. We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.  We are slightly more optimistic about India EB-3.

Philippines: The EB-3 date again also only moved up by week, which is slower than we would have liked to have seen.  While over the course of FY2019, we should eventually see the EB-3 priority date extend into FY2018, we do not expect too much movement in the next few Visa Bulletins.

TWO PROPOSED H-1B CAP MODIFICATIONS

The USCIS has published two proposed rules that will change H-1B cap processes.  While the USCIS hopes that these two rules are finalized in time for the April 2019 H-1B cap, the USCIS has not yet committed to a timeline.  The public may comment on the two proposed rules until January 2, 2019.

The two rules are:

1. Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2. H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

Effective Monday, November 19, 2018, the DOL released a new LCA (Form ETA-9035) which must be used on all immigration filings going forward. A certified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status.  The DOL generally certifies an LCA approximately 7-10 days after submission of the LCA to the DOL.    

Certified and date-valid LCAs in the old format can still be used in immigration filings, provided the LCAs have unused slots in the appropriate filing category, e.g. new employment, continuation of employment without change, etc. 

For all immigration filings, the new LCA requires the legal business name of the end-client(s) as well as the street address of the worksite(s) where the employee will physically work.

For H-1B masters cap petitions, the new LCA requires:

o   The name of the institution that awarded the employee’s master’s degree;

o   The field of study in which the employee’s master’s degree was awarded;

o   The date on which the employee’s master’s degree was awarded; and

o   Documentation substantiating the employee’s master’s degree information.

MU’s employer checklists for H-1B, H-1B1, and E-3 filings have been updated to request this information from employers at case initiation. 

DECEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the December 2018 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

December 2018 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUL17	01SEP16	01SEP16	01JUL17
EB-2	C	01JUL15	01APR09	C
EB-3	C	08JUN15	01MAR09	15JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01DEC15	01JAN10	01AUG17

MU Law Analysis (all references are to Table A unless noted)

All Other, Mexico: As we expected, the EB-1 category moved several months. We expect continued steady movement in this category for All Other.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins. China EB-2 moved two months, although EB-3 only advanced one week. We expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: The Indian EB-3 date moved two months, which was more than expected. There is a chance that EB-3 continues to move at this pace for the next few Visa Bulletins. We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019.

Philippines: The EB-3 date again also only moved up by week, which is slower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, we do not expect too much movement in the next few Visa Bulletins.

USCIS ANNOUNCES THE TERMINATION OF SELF-SCHEDULED INFOPASS APPOINTMENTS

In 2019, the USCIS plans to expand its Information Services Modernization Program throughout the US. This expansion will end self-scheduled InfoPass appointments and instead applicants will use the USCIS website to view general how-to information, access processing times, check case status, and other information about the processing of immigration cases.

The USCIS states that the transition to the Information Services Modernization Program has already improved the delivery of emergency services which can only be provided in person. USCIS surveys and data determined that most people scheduling InfoPass appointments could obtain the same information by calling the USCIS or checking the USCIS website. 

Going forward, when the USCIS customer service representative online or on the phone determines an in-person appointment is necessary, the customer service representative will schedule the appointment for the applicant.