H-1B CAP 2020: NEWS AND NOTES

The H-1B cap filing date will be here before you know it.  New H-1Bs are subject to the H-1B cap lottery and must be filed between March 1-20, 2020.  The USCIS will notify us of H-1B cap lottery winners by March 31, 2020.  If you are preparing to file an H-1B cap petition for 2020, please send MU the items on our checklist no later than March 10.

A variety of types of case are subject to H-1B cap:

-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; and

-Prospective international employees currently living abroad.

These types of case are not subject to H-1B cap:

-H-1B amendments/extensions/transfers

-When the employee has been in H-1B status for less than 6 years

-Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico

-Institution of higher education (or its affiliated or related nonprofit entities), a 
 nonprofit research organization, or a government research organization.

Please contact us if you have any questions or are looking for representation in filing H-1B cap petitions.

TRAVEL BAN 4.0

On January 31, 2020, the President issued a Presidential Proclamation expanding the existing travel ban to include the following countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. 

The new travel ban goes into effect February 21, 2020 at midnight.  Individuals from countries on the new travel ban who have received their visas before February 21, 2020 can still enter the US. However, we recommend that individuals from the newly banned countries enter before the travel ban goes into effect on February 21, 2020.

The government will be reviewing the banned countries on October 1, 2020, and annually thereafter. If the banned countries comply with the US on information sharing, the country may be removed from the banned list. 

The full travel ban now includes the following thirteen countries and different types of visas are banned for each country:

Eritrea	Suspends the entry of immigrants, except as Special Immigrants who have provided assistance to the U.S. government.
Kyrgyzstan	Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
Iran	Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
Libya	Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Myanmar	Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
Nigeria	Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
North Korea	Suspends the entry of all immigrants and nonimmigrants.
Somalia	Suspends the entry of immigrants and requires enhanced screening of all nonimmigrants.
Sudan	Suspends the entry of Diversity Visa immigrants
Syria	Suspends the entry of all immigrants and nonimmigrants.
Tanzania	Suspends the entry of Diversity Visa immigrants
Venezuela	Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).
Yemen	Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).

Citizens of the banned countries who are already present in the United States can file for extensions of status, changes of status, or for green cards (adjustment of status). 

If you are a citizen of one of the banned countries, please reach out to your MU attorney for further guidance. 

US DEPARTMENT OF HOMELAND SECURITY IMPLEMENTS NEW “PUBLIC CHARGE” RULE

On August 14, 2019 the Department of Homeland Security (DHS) announced a new “public charge” rule.  The rule was set to into effect on October 15, 2019, but was stopped by a nationwide injunction.  On January 27, 2020 the US Supreme Court lifted the nationwide injunction.  Note that an injunction still remains in effect in Illinois.  On February 24, 2020 the new public charge rule will go into effect.

Under a longstanding law and policy, if immigration authorities determine someone is “likely to become a public charge” the US can deny the applicant’s green card or other visa to the US.  A public charge is someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changes the standard by the DHS determines whether a foreign national is likely to become a public charge.

Under the previous policy, DHS examined whether an intending immigrant was primarily dependent on public benefits.  Under the new rule, immigration officers will examine whether immigrants are likely at any time to become a public charge, using a multi-factor test. 

Public benefits under the new rule include:

1)   Any federal, state, or local cash assistance, including:

a.    Social Security Income (SSI)

b.    Temporary Assistance for Needy Families (TANF)

c.    Government programs for income maintenance often called “general assistance”

2)   Supplemental Nutrition Assistance Program (SNAP) also known as food stamps

3)   Section 8 Housing Assistance

4)   Medicaid, with certain exceptions

5)   Public Housing under Section 9

The immigration officer will take into account a broad range of factors and consider all of the following when making a determination if the foreign national visa applicant is likely to become a pubic charge:

a.  Receipt of a public benefit for more than 12 months in the aggregate within a 36 month period

b.    Age

c.    Health

d.    Family status

e.    Education and skills

f.    Assets, resources, and financial status 

This rule will apply to all applicants for any type of visa, though it is expected that the immigration officers will look most closely at those applying for a green card.  Employment-based visa applicants should be treated favorably because, by virtue of their employer-sponsor, they have guaranteed employment and income in the United States.  However, policy experts forecast that this rule will likely be applied inconsistently and cause fewer legal immigrants to enter the United States. 

VISA REFUSALS AT THE US EMBASSY IN MANILA

Musillo Unkenholt is aware that the US Embassy in Manila has refused to approve almost any immigrant visa for the last 3 weeks.  The problem is, apparently, that the Embassy is mistakenly interpreting clauses in employment contracts between nurses and their US employers, perhaps based on some bad information that was sent to the Embassy. 

The problem seems to be localized in Manila.  Philippine nationals processing for immigrant visas at other embassies around the world are being issued their immigrant visas.  Likewise, other embassies are also issuing immigrant visas to non-Philippine nationals. 

We are working with clients, trade associations, and nurses to solve this problem.  It may take a little while to solve the problem but it is a fairly straightforward problem that will be solved, hopefully in the next few weeks.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

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

·   Q&A

PLEASE JOIN US!

FEBRUARY 2020 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the February 2020 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin.

February 2020 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	15DEC18	22MAY17	01JAN15	01DEC18
2nd	C	01JUL15	19MAY09	C
3rd	C	01JAN16	08JAN09	01JUN18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 category remained current and is expected to remain current for the foreseeable future.  The EB-3 is current, but the DOS expects to implement a retrogression in March.

China: EB-2 did not move, although EB-3 progressed by a month.  The EB-2 and EB-3 each progressed about one month.  Over the course of FY2020 we expect EB-2 and EB-3 to remain within a few months of each other.

India:  There was virtually no progress for India.  We continue to expect very little progress in either category in future months.

Philippines:  We were encouraged by the three-month progression in EB-3.  We remain surprised by the slow progress of EB-3, although we were encouraged by this month’s progression.  We think that there is a chance of continued progression in the next few months, although the enactment of All Other EB-3 retrogression may mean that fewer visas are available for the Philippines.

REMINDER: NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

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

·   Q&A

PLEASE JOIN US!

BUSINESS IMMIGRATION OUTLOOK FOR 2020

There are some obvious areas where we can expect to see activity in business immigration 2020.  Here are a few topics that we will keeping our eye on this year:

New H-1B Cap Process

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020.  Please join us for a teleconference on the new H-1B registration system to learn more.  REGISTER.

H-1B Specialty Occupation Rule

The USCIS recently published notice that it intends to revise the definition of specialty occupation, with an aim to restricting the number of people who qualify for the H-1B visa.  It remains to be seen what the revised definition says and whether or not the USCIS oversteps its authority with a new rule.  The USCIS continually is sued on these issues and usually settles the case by reopening and approving the H-1B petition. 

H-1B Employer-Employee Rule

Likewise, USCIS will also seek to revise the H-1B rule by creating a stricter law on who can be an H-1B employer.  USCIS’ own regulation says that its aim is to “to better protect U.S. workers and wages,” which has traditionally been the Department of Labor, not the USCIS’ role.  Again, we expect to see lawsuits if the USCIS exceeds the rules set forth by Congress.

Recession of the H-4 / EAD rule

The Trump Administration has, for years, sought to eliminate the H-4/EAD rule.  A recent USCIS court filing indicates that the rule rescinding work authorization could happen in March. 

NEW H-1B CAP REGISTRATION SYSTEM AND STRATEGIES FOR THE UPCOMING H-1B SEASON WEBINAR

MU Law will be hosting a free webinar for our clients and friends on Wednesday January 29, 2020 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

This webinar will discuss the NEW H-1B cap registration system and strategies for the upcoming H-1B season.

Webinar Agenda:

·   NEW H-1B Cap Registration System

·   H-1B Cap Projections

·   What is a Specialty Occupation?

·   H-1B Dependency

·   Special Issues for Staffing Companies and Third Party Placements

·   What is Third- Party Placement v. In-House work?

·   Employer-Employee relationships, how to maintain them

·   Cap-gap for F-1s as well as CPT/OPT maintenance -

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

·   Q&A

PLEASE JOIN US!

JANUARY 2020 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State has just issued the January 2020 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

January 2020 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	15OCT18	22MAY17	01JAN15	01OCT18
2nd	C	01JUL15	18MAY09	C
3rd	C	01DEC15	01JAN09	15MAR18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: EB-2 did progress by three months.  The EB-2 and EB-3 each progressed about one month.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was just three days’ progress in EB-2 and no progress in EB-3.  We continue to expect very little progress in either category in future months.

Philippines:  We remain surprised by the slow progress of EB-3.  The DOS indicates that the Philippine EB-3 will only be moving one month at a time for the next 3 calendar months, which is slower than our internal metric indicate should be happening.  We are no longer predicting as rosy progressions in early 2020.  

FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT VOTE TABLED UNTIL 2020

Sen. Lee and Durbin have agreed to postpone S. 386 (Fairness for High-Skilled Immigrants Act) until 2020. It seems that Sen. Lee may not have had all of his Republicans on board with some of the latest amendments.

Musillo Unkenholt's analysis on what is in the current version of Act is on our December 17, 2019 blog post.

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT COULD PASS SOON

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year.  On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress.  One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT).  Sen. Lee is bill’s lead sponsor.

The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:

Changes to the Green Card Quota and Process

• Eliminate the per-country visa caps on employment-based workers over a three-year phase in period.  This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
• Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker.  This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families.  These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out.  This provides a great relief to long-retrogressed families.
• There is a 4,400 visa carve-out for Schedule A workers.  As with current law, their immediate family members also take visas at the same time.  This provision will end in 2026.
• There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US.  Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses.  This provision ends in nine years.

 Changes to the H-1B visa

• Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
• H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
• Elimination of the B-1 in Lieu of H-1B business visa rule.
• Additional wage protection for H-1B workers.
• Additional protections for H-1B whistleblowers. 

Next Steps

Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today.  The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year.  After that the President will need to sign the Bill into law, which is expected.

H-1B CAP SEASON 2020: MUST FILE MARCH 1-20, 2020

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020. Accordingly, all MU clients should begin to identify the beneficiaries that they would like to sponsor for the 2020 H-1B cap season. 

The USCIS has not yet announced the specific data that will be required for registration, although they have assured the public that the required information will be “basic.”  There will be a nominal $10 fee for each registration.  After the New Year, MU will hold a webinar teleconference to outline the process for our clients.

PWDs WILL CONTINUE TO TAKE 4 MONTHS (AND OTHER NOTES FROM DOL)

On November 5, 2019 the Department of Labor held a presentation and gave updates to a number of their programs.  AILA has reported on the update.  The updates include:

-DOL expects that PWD processing times will remain at 4 months, despite its goal to get the processing time down to 90 days.

-The Form 9141 (PWD) has been updated and posted to the OMB webpage.  The expectation is that it will go live in mid-2020. Until that time, the current Form 9141 remains valid, even though it lists an expired 10/31/2019 date.

-With the October launch of LCAs on the PERM system, iCert will soon be decommissioned.

-At some point PERM will move to the FLAG system, although it is not expected until 2021 at the earliest.

DECEMBER 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the December 2019 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

December 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.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	15JUN18	15MAY17	01JAN15	01JUN18
2nd	C	22JUN15	15MAY09	C
3rd	C	01NOV15	01JAN09	01MAR18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: EB-2 did progress by three months.  The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly   equal. 

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines:  We remain surprised by the slow progress of EB-3.  The DOS indicated that demand for Adjust of Status cases is tamping down the promotion of dates.  Of course, Philippines EB-3 uses much less Adjust of Status visas than other categories, which makes this explanation suspect.  We still find the EB-3 priority date to be too conservative, but at this point we are no longer predicting as rosy progressions in early 2020.

MU IS MOVING OUR OFFICE – WE WILL BE CLOSED NOV 14, 15

Musillo Unkenholt will be moving its offices on Thursday November 14 and Friday November 15.  Accordingly, the law office will be closed over those two days.

Our new office will be at 302 W. Third Street.  The official address is:

Musillo Unkenholt LLC

302 West Third Street, Suite 710

Cincinnati, OH 45202

All government agencies have been notified about the move, including USCIS and DOL.  We do not expect any interruption in mail or service.

We are very excited for the move.  We have outgrown our current space.  Our new space is 50% larger than our current space.

If you are in the Cincinnati area on December 13, please let us know.  We will be having an open house in the afternoon.

FEDERAL JUDGE BLOCKS TRUMP’S HEALTH INSURANCE RULE

Over the weekend, a federal judge blocked Pres. Trump’s health insurance rule for immigrant visa applicants.  Under the rule, all intending immigrants would have had to prove that they were going to enroll in a qualifying health insurance plan within 30 days of entering the US. 

There is no timetable for how long the temporary restraining order will remain in effect.

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DECEMBER 2, 2019

On October 30, 2019 the USCIS announced a proposed rule to increase the premium processing fee.  The premium processing fee will be raised from $1,410 to $1,440.  The fee increase will go into effect on December 2, 2019.

 

Premium processing is an optional service currently authorized for certain types of cases, notably filing an H-1B or an I-140. The system allows petitioners to request 15 day processing of these cases if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The USCIS indicates this increase of the premium processing fee reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019 based on the Consumer Price Index for all Urban Consumers (CPI-U).