SIXTEEN HOUSE REPS ASK DHS AND DOS FOR ANSWERS ON VISAGATE

Earlier this week, sixteen Congressional House representatives sent a letter to Sec. Jeh Johnson (DHS) and Sec. John Kerry (DOS) for answers related to September’s bumbled visa bulletin roll-out that resulted in a last minute revised Visa Bulletin, just days before the October 1 live date. 

This blog produced several articles on the series of events, which has been dubbed “Visa Gate” on Twitter.

Sept. 9 - NEW VISA BULLETIN ALLOWS EARLY FILING OF I-485s

Sept. 16 - MORE NEWS AND ANALYSIS ON THE NEW VISA BULLETIN

Sept 26 - REVISED VISA BULLETIN REVEALS TONE DEAF USCIS

Oct 10 - IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The House Member’s letter asks for the estimated number of applicants who were impacted by the last minute revised Visa Bulletin. 

Going further, they ask for DHS to consider providing EAD cards and allowing portability to those with approved I-140s.  Both concepts were recently endorsed by AILA.

HEALTHCARE STAFFING EXPECTED TO GROW BY 17% IN 2016

Staffing Industry Analysts US Staffing Industry Forecast predicts that US healthcare staffing will grow by 17% in 2016.  All four healthcare staffing sub-segments: -travel nursing, per diem nursing, locum tenens and allied health, showed double digit growth in 2015.

Reasons for the increase in staffing are many, including tightening US labor supply and Obamacare allowing previously uninsured patients to avail themselves of healthcare services.  More details on the report are accessible on their webpage.

MU Law has seen greatly increased demand for foreign-trained nurses, and Physical and Occupational Therapists in 2015, confirming this study's conclusions.

A PRIMER ON HOW AN EMPLOYER MIGHT WIN AN H-2B CASE FOR CAREGIVERS

The H-2B visa is a visa used for temporary or seasonal workers.  As BALCA explained in a case published earlier this week, In the matter of: Absolute Home Care, the H-2B is not a flexible visa.  The H-2B is not a viable option for healthcare employers seeking to fill long term staffing shortages.  An H-2B can only be used to fill staffing shortages, such as a one-time occurrence, seasonal need, peakload need or intermittent need.

In the matter of: Absolute Home Care the employer, Absolute Home Care, asked the DOL to certify that it had a need for twenty Caregivers for nine months, from October 2015 – June 2016.  In support of its claim, Absolute Home Care, provided the DOL with evidence that it traditionally had more clients in the prior winter (January – March 2014), than in the summer months. 

This argument this did not convince the BALCA judge for at least two reasons.  First, the evidence was that the need was for three winter months, not the nine months requested in the Application.  Second, Absolute Home Care asked for 20 Caregivers without documenting a single client contract substantiating the need for the period between October 2015 – June 2016. 

One bright spot is that the judge’s opinion allows the reader to “reverse engineer” how an H-2B might be approvable.  A successful case could be made if the employer can show past practice evinces a seasonal need, along with specific forward-looking contracts detailing a temporary need for the workers.

USCIS TO PUBLISH ITS OWN VISA BULLETIN

USCIS has just announced that it will publish its own Visa Bulletin Dates for Filing Visa Applications (Chart B).  The USCIS’ Dates for Filing Visa Applications will be used in order to determine if immigrant visa applicants can file Adjustment of Status Applications. 

USCIS expects that this chart will be published approximately one week after the publication of the Department of State’s Visa Bulletin.  The November 2015 is expected to be published shortly.

The Department of State’s Application Final Action Date (Chart A) chart will be used to determine when individuals may file their adjustment of status applications.

IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The Department of State has just issued the November 2015 Visa Bulletin.  The new revised Visa Bulletin had a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3.   We have a detailed analysis of the Visa Bulletin at the end of this blog post.

The Department of State now publishes two Employment-based Visa Bulletin charts each month: (1) Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:

• Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
• Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
• Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
• Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.

November 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01AUG06	C	C
3rd	15AUG15	01JAN12	01APR04	15AUG15	15JUN07

MU Law Analysis

All: No change from Oct 2015 Visa Bulletin
China: Both EB-2 and EB-3 progressed a few months from Oct 2015 Visa Bulletin
India: EB-2 jumped from 01MAY05.  This trend may continue.  EB-3 continued its steady but slow progress.
Mexico: No change from Oct 2015 Visa Bulletin
Philippines: EB-3 jumped ahead six months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months. 

Dates of Filing

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

The Dates of Filing chart did not change from October 2015.  This is not a surprise.  The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin. 

The Plaintiffs lost their bid for a Temporary Restraining Order.  If the Plaintiffs were successful, then the USCIS and DOS would have been forced by the judge to revert back to the original September 2015 Visa Bulletin.

The Dates of Filing chart will not change until one of three things happen.  First, the Plaintiffs could be successful in their lawsuit.  However the lawsuit will take many months.  Witnesses will have to be deposed and documents will have to be shared.  Our sense is that the earliest that the lawsuit could be complete is early 2016.

Second, the Plaintiffs and the USCIS / DOS could settle their lawsuit. Similarly, the USCIS / DOS could respond to public and private pressure to change the Dates of Filing.  Several Congressional Representatives have issued statements to the agencies' expressing their frustration with these agencies' haphazard approach to immigration benefits.  

AILA has been working behind the scenes to lobby the agencies for an accurate Dates of Filing chart.  There is a sense among immigration attorneys, MU Law included, that the agencies do not really have a firm grasp of the volume of immigrant visa numbers.  Our evidence for this claim is the seemingly random dates listed on visa bulletins.  The pressure being exerted on the agencies may force the agencies to truly do their job and accurately project Visa Bulletin dates.

Thirdly, the numbers may compel movement. This third path may be the most realistic.  

This is most likely in the Philippine EB-3 category.  As we have seen with the publication of the November Visa Bulletin, the Philippine EB-3 Final Action date jumped ahead six months to June 2007.  This implies that the DOS does not truly know what the demand is for Philippine EB-3 visas.

But we know what the demand is.  MU Law has a very large volume of healthcare-based immigrant visa clients and we know most of heaviest users of healthcare-based immigrant visas and their attorneys.  These clients and friends claim a large portion of the Philippine EB-3 visas.  

Our read is that most (not all) of the Philippine EB-3 priority date recaptures from 2004-2008 have already happened.  We also know that very few Philippine EB-3 immigrant visas were filed between 2009 and 2012. In other words, once the DOS moves the Philippine EB-3 date to 2009, it will have to quickly move that date to 2013.  
Our prediction is that the immigrant visa volume dictates that the DOS will progress the Philippine EB-3 Dates of Filing number in the first half of 2016 and certainly no later than next summer.

DHS TO CREATE FILIPINO WWII VETERANS PAROLE PROGRAM

This blog generally focuses on employment based immigration, especially those in the healthcare area.  Today's’ blog post is not that.  Today’s blog post is focused on a new USCIS veterans Parole program for Filipino WWII veterans.  Since so many healthcare works are of Filipino descent, we though that this item was worthwhile for our readership.

The new program may enable Filipino family members to provide support and care to their aging veteran family members who are U.S. citizens or lawful permanent residents.

USCIS has merely announced their intention to establish the program.  It is not yet effective.   Any applications received before the program is implemented may be denied. USCIS will inform the public when the application process is in place.  Register to receive email USCIS updates.

SUNSET OF 50/50 H-1B FILING FEES

In 2010, Congress passed Public Law 111-230.  PL 111-230 raised H-1B and L-1 filing fees for employers who have over 50 employees with more than 50% of these employees in H-1B or L-1 status.  H-1B petitions were assessed an additional $2,000 in filing fees.  L-1 petitioners were assed $2,250 in additional filing fees.  These additional fees did not stay with USCIS but were deposited into the US government’s general treasury fund, ostensibly to fund border security.  PL 111-230 was original to end in 2014, but was re-authorized until September 30, 2015.

At this time, PL 111-230 has not been reauthorized and so 50/50 employers no longer need to pay the additional filing fees.  AILA has confirmed that USCIS is aware of the ending of PL 111-230.

REVISED VISA BULLETIN REVEALS TONE DEAF USCIS

On late Friday afternoon the USCIS and DOS issued a revised October 2015 Visa Bulletin.  The new revised Visa Bulletin has a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3. 

Revised October 2015 Visa Bulletin (Changes in bold)

Employment- Based	All Other	CHINA - mainland born	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01JAN13	01JUL09	C
3rd	01SEP15	01OCT13	01JUL05	01JAN10

Original October 2015 Visa Bulletin

Employment- Based	All Other	CHINA - mainland born	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAY14	01JUL11	C
3rd	01SEP15	01OCT13	01JUL05	01JAN15

The USCIS published a stilted “explanation” for the revision,

Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process.

For the most part I stay away from commentary on this blog.  Not today.

This revised Visa Bulletin means that the majority of people who could have filed their I-485s on October 1, 2015, now must indefinitely wait.  Allowing long-suffering workers the flexibility that would come with the filing of I-485s would have been excellent policy.  Implementing that policy was excellent government action.  Implementing the policy and then rescinding the policy is incompetence.

These government bureaucrats are tone-deaf to the actual human beings behind these petitions.   These agencies had ten months to implement this system.  The idea that these agencies only consulted in the last two weeks is preposterous. 

Many of these immigrant workers spent thousands of dollars hiring counsel to prepare their Applications.  They took time off from their jobs to subject themselves to ridiculously unnecessary (and costly) medical examinations. 

Worse than the dollars spent and the time spent is the crushing of these immigrants’ hope.  These are the immigrants who continually get trashed by an immigration system that cannot get out of its own way. 

There are already rumors that the USCIS and DOS are being threatened with lawsuits.  There is also a rumor that the USCIS and DOS may not want to repeat the fiasco that was the Visa Gate in 2007, and therefore may rescind this Revised Visa Bulletin.  

FCCPT: ICMT CLAIMS ARE FALSE

The Foreign Credentialing Commission on Physical Therapy (FCCPT) has posted notice on its website that the Indian College of Management & Technology is making false claims about its relationship with FCCPT.  FCCPT issued a cease and desist letter to ICMT on August 26, 2015. 

According to FCCPT, ICMT claims to provide “A Program 100% Approved and Accepted by F.C.C.P.T, USA”.  FCCPT comments that “ICMT has no working relationship with FCCPT, and FCCPT has not approved coursework completed at ICMT. FCCPT accepts some coursework completed at ICMT study centers for recognized Indian Universities with recognized physiotherapy education programs. However, all credits must be granted by the Universities.”   FCCPT reminded applicants to limit their coursework to recognized educational institutions if the applicants want their coursework to be credited.

AAIHR CODE OF ETHICS

Because of the long‐term personnel shortages in the healthcare industry, foreign‐educated and trained personnel must play a part in the solution to the healthcare problem that America is facing. Stakeholders are actively trying to abate this problem through investments in foreign educated personnel.

These investments will only be sustainable if the standards of this industry meet the high standards set by the healthcare industry. The Ethical Code developed by the AAIHR takes a 360 degree approach to ethical recruitment and ensures responsible international healthcare recruitment.

As a member of the AAIHR Code of Ethics Committee, I have seen the Code work in practice. Our office has endorsed the AAIHR Code of Ethics.  If you are a stakeholder in the world on international healthcare recruitment, please consider endorsing the Code and/or joining the AAIHR.

MORE NEWS AND ANALYSIS ON THE NEW VISA BULLETIN

AILA has published a new Q&A with Charlie Oppenheim, who is the DOS’ Visa Bulletin guru.  Charlie points out a number of interesting points about the new Visa Bulletin. 

• The DOS may not always publish a monthly Dates of Filing chart.  If it does not publish a chart, then the only I-485s that will be accepted by USCIS are those petitions with priority dates earlier than the “Final Action” chart.  Each month, the Visa Bulletin will indicate whether USCIS will accept adjustment applications during the upcoming month.

• The new Visa Bulletin will not slow the overall processing times for immigrant visas. 

• Charlie does not expect the “Final Action” chart to retrogress for the foreseeable future.  The DOS expects to be able to give better forewarning when retrogression may occur.  The “whiplash” effect of dates moving aggressively forward and backward is expected to no longer occur because the DOS will have much better data regarding the actual number of immigrant visas that are being demanded.

• The “Dates of Filing” Visa Bulletin chart is not expected to change much from month to month, but when it does move it is expected to move only forward, albeit slightly.

• The “Dates of Filing” chart always has always existed but its application was limited to Consular Process petitions.  Overseas immigrant visa petitioners have always received their NVC Fee Bills several months earlier than indicted by the Visa Bulletin.  The only change that has occurred is that the DOS is now publishing this chart.

NEW VISA BULLETIN ALLOWS EARLY FILING OF I-485s

In a ground-breaking change, the Department of State and the USCIS have changed their process for accepting I-485, Applications for Adjustment of Status.  Adjustment of Status applications will now be accepted earlier than when the priority date is current. 

The Department of State will now publish two Employment-based Visa Bulletin charts each month: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:

• Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
• Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
• Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
• Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.

If you are an employer or an employee who can now file an I-485, please contact our office so that we can prepare and file your I-485.

The new October 2015 Visa Bulletin is:

A. APPLICATION FINAL ACTION DATES

This Chart is comparable to the old Visa Bulletin.

Employment- Based	All Other	CHINA - mainland born	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01JAN12	01MAY05	C
3rd	15AUG15	15OCT11	08MAR04	01JAN07

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may:

• Consular Applicants:  assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions.

• Adjustment of Status Applicants: file Adjustment of Status, EAD and APs.

Employment- Based	All Other	CHINA - mainland born	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAY14	01JUL11	C
3rd	01SEP15	01OCT13	01JUL05	01JAN15

USCIS ALLOWS ANYONE TO PAY IMMIGRANT FEE

In February 2013, the USCIS launched a new Immigrant visa fee  of $165.00 for Consular Processed Immigrant Visa (green card) appointments.  This fee does not apply to I-485, Applications for Adjustment of Status.

Applicants pay online through the USCIS website after they receive their visa package from Department of State and before they depart for the United States.

USCIS has now simplified the process for paying the USCIS Immigrant Fee online in their electronic immigration system.  USCIS says that the revised payment process reduces the amount of information an immigrant must provide to USCIS.

Notably, anyone can now pay the fee, as long as they have the immigrant’s Alien Registration Number (A-Number) and DOS Case ID.

The USCIS Immigrant Fee is required for individuals immigrating to the United States as lawful permanent residents. USCIS uses this fee to process, produce, and deliver Permanent Resident Cards (Green Cards).

REMINDER: MU Law Client Conference Call

Musillo Unkenholt will hold a free teleconference on Thursday September 3, 2015 at 3PM ET / 12 noon PT.  All clients and friends of the firm are encouraged to dial-in to the call.  If you would like to register for the call, please send an email to: Annalisa@muimmigration.com.

The agenda for the teleconference includes:

* H-1B onboarding starts Oct 1: What do employers need to do to stay compliant?

* When does my H-1B worker have to start working?  The 30/60 day rule.

* Update on the Simeio Solutions case and Amended H-1Bs.

* When do I have to start paying an H-1B worker's salary?

* Form I-9 compliance

* E-Verify compliance

* Managing Social Security number issues.

* Handling Professional licensure issues.

* Working with the Consulate for H-1B Visa Issuance.

* H-1B cap 2015 final numbers and projections for 2016

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

USCIS DISCONTINUING LEGACY E-FILING

USCIS is discontinue its legacy e-Filing system and will be rolling out a new system called the Electronic Immigration System.  A date for the launch of the new system has not been announced.

USCIS expects that the new system will be faster, more secure, and easier to upgrade and update.  Importantly, the new systems will have high data security standards.

The last day to start new forms in the present system is August 30, 2015. The old system will be decommissioned on September 20, 2015.  After September 20, all forms must be filed via hard, paper copy. 

The legacy e-Filing system has offered online filing for several USCIS forms, although it was never widely accepted by users.  MU Law rarely used the e-filing system, as it offered no tangible benefits to petitioners and had several detriments. 

It remains to be seen if the new proposed system will enhance user experience.  It is worth noting that the Department of Labor’s on-line PERM system just celebrated its 10^th anniversary.  While the PERM system is not perfect, it achieves its goals and is a good model for the USCIS to emulate.