WHAT DOES THIS NEW PRESIDENTIAL PROCLAMATION MEAN FOR MY EMPLOYEES?

MU Law will be hosting a free webinar for our clients and friends on Tuesday, June 30, 2020 at 2PM Eastern (1PM Central).
 

This webinar will discuss the NEW Proclamation issued by President Trump suspending entry of immigrants and nonimmigrants until the end of 2020. Interested clients and friends can register for our webinar by clicking on the link below.

REGISTER HERE

Your Questions Answered, including:

• What types of cases are impacted?
• My employee’s status expires this fall, can it be extended? Or will the employee have to stop working?
• What should I do if my employee needs to travel?
• What can I do if my employee is currently outside the US and needs to return?
• My employee’s spouse and children went home for summer vacation, will the family be allowed back into the US?
• Can I file a green card case for my employee who is in the US?
• Is my employee eligible for a waiver from the proclamation?

PLEASE JOIN US!

TRUMP ISSUES WIDE RANGING EXECUTIVE ORDER BANNING NEW LEGAL EMPLOYMENT BASED IMMIGRANTS UNTIL 2021

Last night, President Trump updated and expanded his April Presidential Proclamation that had banned legal immigrant visas for 60 days.  Last night’s ban extends the April legal immigration ban through December 31, 2020 and adds many temporary employment-based nonimmigrant visas, including H-1Bs, L-1s, J-1s, and H-2Bs. 

It seems certain that the President will be sued and so any information contained here is subject to the outcome of the lawsuits.

The ban effects many types of employment-based immigration, such as:

Green Cards (Immigrant visas) Consular Processing. 

All Consular Processing green cards continue to be banned, as they have been since April.  There are a few exceptions:

• Permanent Residents of the US;
• Healthcare workers and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date);
• Other individuals coming to the US to perform work essential to combating, recovering from, or alleviating the effects of Covid-19 and their immediate family members (including those family members traveling with the healthcare worker and those family members coming to the US at a later date).
• Spouses and children of US Citizens;
• EB-5 investors;
• Individuals who are entering to assist law enforcement or who are members of the US Armed Forces;
• Special Immigrants in the SI or SQ Class and their family members; and
• Any person whose entry is in the national interest of the US as determine by the Secretary of State or Secretary of Homeland Security.

Green Cards (Immigrant visas) Adjustment of Status

No effect whatsoever.  Many Adjustment of Status interviews, of course, have been delayed because of COVID-19, although we have seen that the USCIS is approving some employment based green cards without an actual visa interview.

H-1B, L-1, J-1, and H-2B visas

• Beneficiaries approved for H-1B and L-1s will not be allowed to enter the US unless they currently have a valid visa stamp, even if they have an approved I-797.
• H-1B and L-1 visa stamps cannot be granted at embassies or consulates unless the H-1B or L-1 is for one of the exemption categories below. 
• If you have an H-1B or L-1 approval and you are in the US, you should not travel outside the US unless you already have a valid H-1B visa stamp in your passport and you intend to return to the US prior to the expiration of that visa stamp.
• H-1B and L-1 amendments, extensions, and transfers continue to be permissible.
• H-1B cap petitions that are based on a change of status (e.g. F-1 to H-1B) should be approved with a new I-94 card for the H-1B status.  The ban does not prohibit or effect the change of status, however, individuals changing status to H-1B should not leave the US after October 1 as they will not be able to return without a valid H-1B visa stamp.  
• Similar prohibitions apply to J-1 and H-2B visas, although the J-1 visa ban is limited to interns, trainees, teachers, camp counselors, au pairs, and summer work programs.  Other J-1s may obtain visas and enter the US.
• The ban also applies to the H-4, L-2, J-2 dependent classifications.  Spouses and children in the US as dependents should not travel abroad unless each family member has a valid visa stamp in their passport.  Dependents who are currently abroad will not be allowed to enter the US unless they currently have a valid visa stamp.

Exemptions to the H-1B, L-1, J-1, and H-2B nonimmigrant visa ban

The visa ban does not apply to:

• any lawful permanent resident of the United States;
• any alien who is the spouse or child of a United States citizen;
• any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
• any alien whose entry would be in the national interest as determined by the Secretary of State or the Secretary of Homeland Security.

National Interest Entry Requests

The Proclamation allows for exemptions to the nonimmigrant visa ban if the Beneficiary is one of several categories deemed by DOS or DHS to be “in the national interest”.  It is expected that the DOS and DHS will issue details about these exemptions and the process to request an exemption.  The Proclamation’s named categories include those who:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;
• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;
• are involved with the provision of medical research at United States facilities to help the United States combat COVID-19;
• are necessary to facilitate the immediate and continued economic recovery of the United States; or
• are children who would age out of eligibility for a visa as a result of the visa ban.

EMPLOYMENT BASED IV QUOTA COULD INCREASE BY 60,000 IN FY 2021

The Department of State expects that there will be “significant advancement” in many categories, including all EB-1s and EB-5s, as well as EB-3 Worldwide and Philippines, starting in FY 2021 (October 2020 Visa Bulletin). This is terrific news for all EB IV applicants.

The news come from the Department of State’s Charlie Oppenhiem, who is always gracious with his time.  Charlie’s monthly AILA Q&As, Check In With Charlie, are always informative.  This month’s Check In contained many interesting answers, including answers to questions posed by MU attorneys.

Charlie expects that the Family-Based Immigrant Visa category will be underused by about 60,000 visas, as a result of slowdowns in processing related to COVID-19.  US law says that when the FB IV does not meet its quota, all of those visa flow into the Employment-Based category in the next fiscal year.  Therefore, Charlie expects the EB category to increase from 140,000 to about 200,000 visas in FY 2021. 

This means that the per country quotas, which are normally about 10,000 IVs, will increase to approximately 14,000 IVs per country.  It is this increase in EB visas that will lead to the dramatic progressions in October 2020.

Charlie also helpfully explained that while he could have progressed the Visa Bulletin more aggressively in June and July, he did not do so because “processing capacity at both consular posts and USCIS is diminished due to the pandemic.”  Therefore, Visa Bulletin progressions would not have meant increased visa umber usage and may have resulted in a future retrogression, which he tries to avoid.

JULY 2020 VISA BULLETIN: PROGRESS FOR PHILS AND WW EB-3

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

July 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	C	22AUG17	08MAY17	C
2nd	C	08NOV15	08JUL09	C
3rd	15APR18	22JUN16	01JUN09	15APR18

MU Law Analysis

This Visa Bulletin continued the big progressions that we saw in the June Visa Bulletin.  MU Law has been calling on the DOS to rapidly advance the dates so that all immigrant visas are used in 2020.  Many visas appear that they will go unused without this progression. 

The Worldwide EB-3 dates moved almost six months are now at April 2018, as is the Philippines EB-3.  We continue to expect big progressions in these categories for the August and September VBs because very few visas were used due to the global shutdown caused by COVID-19.

The Indian EB-3 dates moved ahead two months.  It continues to move at a quicker rate than we have seen in years.  India EB-2 even advanced a month.  China EB-2 and EB-3 advanced by one week.  We might see continued progressions of a few weeks or months in these categories for the rest of the fiscal year.

The EB-1 movements were also reassuring.  As was the case last month, India EB-1 progressed another 10 months, reflecting reduced demand.  China EB-1 advanced by a week, as the DOS remains concerned about pending demand.  Limited progressions in EB-1 and EB-2 categories in the future could mean that more visa numbers flow down to EB-3, which would mean more advancement.

HWRA CO-SPONSOR LIST GROWS AND GROWS

Support for the Healthcare Workforce Resilience Act continues to grow.  In the Senate, co-sponsorship of S. 3599 has grown to 26 Senators.  Several others will be announced shortly.  Over one-quarter of all Senators in just a month.  Sen. Perdue (R-GA), Sen. Durbin (D-IL) and their teams deserve enormous credit for moving so quickly to garner support.

In the House, HR 6788 now has 29 co-sponsors.  In both chambers, the measure is entirely bipartisan.  Likewise, Rep. Schneider (D-IL) and Rep. Cole (R-OK) and their staffs merit great praise from the community.

Senate list of co-sponsors

House list of co-sponsors

USCIS REINSTATES PREMIUM PROCESSING

Beginning Monday, June 1, 2020, the USCIS will reinstate premium processing on certain applications.  Below is a list of case types and the date on which premium processing will be reinstated.

June 1 – All I-140s, except those on behalf of Multinational Managers / Executives and National Interest Waivers can be filed for or upgraded to premium processing.  (NOTE – I-140s on behalf of Multinational Managers / Executives and National Interest Waivers have never been allowed to file under premium processing.)

June 8 – Cap-exempt H-1B petitions that were filed before June 8 can be upgraded to premium processing.  Typical cap-exempt H-1B petitions include:

·        H-1B extensions

·        H-1B amendments

·        H-1B transfers

·       H-1B petitions filed on behalf of cap-exempt entities such as research facilities and universities.

June 15 – Cap-exempt H-1Bs filed on or after June 15 can be filed for premium processing

June 22 – All other H-1Bs petitions, including H-1B cap cases selected in April 2020 can be filed for or upgraded to premium processing.

US NURSING SUPPLY IS AT A CRISIS

Nursing supply was already at a tipping point before the COVID-19 crisis.  The US was struggling to satisfy rising demand in the face of a decade-long and acute nursing shortage, which was projected to balloon to 200,000 unfilled positions this year.  The COVID-19 crisis has exasperated an already overwhelming shortage.

The HWRA is legislation that will increase the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers.

The US nursing crisis will only get worse:

• While the crisis is abating in some areas of the country, a COVID-19 vaccine is not expected for 18 months.  Spikes in infection rates will continue until the vaccine is developed.  
• CDC Director Robert Redfield fears that the virus’s continued assault on our nation next winter could “actually be even more difficult than the one we just went through.” He continued, "and when I've said this to others, they kind of put their head back, they don't understand what I mean." 
• Likewise, during the 1918 Spanish Flu pandemic some areas in the country did not reach their peaks until the following November.  The second wave was much more deadly than the first wave.
• Infection peaks have not yet happened in most of the country.  Seven of the eight counties with the most infections are all in New York.  While New York appears to have finally hit its peak, that state is an outlier.
• Other countries have not yet reached an infection peak.  As international travel comes back on line, it is expected that US infection rates will re-emerge.
• Maldistribution of healthcare workers means that grave nursing shortages exist in some localities and specialties.  For instance, employers of dialysis nurses have seen their national shortage triple in the just eight weeks.  New York area hospitals are offering pay rates at 2 to 4 times a nurse’s usual salary, in an effort to attract nurses from other areas of the country.
• Nursing schools are forcing rushed graduations in an effort to put nurses immediately onto hospital rosters.  States are even waiving licensing requirements in an effort to get as many healthcare workers to work as quickly as possible.
• We know based on the experience of other countries that the coronavirus is a caregivers' illness. In Italy's Lombardy region, one of the country's hardest-hit, as much as 10 percent of all nurses and doctors have been infected and placed in quarantine.  Italy is now desperately calling on retried healthcare workers to join their fight.

JUNE 2020 VISA BULLETIN: PROGRESS FOR PHILS AND WW EB-3; EB-1

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

June 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	C	15AUG17	08JUN16	C
2nd	C	01NOV15	12JUN09	C
3rd	08NOV17	15JUN16	01APR09	08NOV17

MU Law Analysis

This was another eagerly anticipated Visa Bulletin.  The DOS moved the Philippines and Worldwide EB-3 ahead by 10 months, which is encouraging.  The Indian and Chinese EB-3 dates moved ahead one month, which is also a promising sign. It would not surprise us to see another big progression in the July Visa Bulletin, especially for the Philippines and Worldwide EB-3s. 

The EB-1 movements were also reassuring.  India EB-1 progressed 10 months.  China EB-1 advanced by a month.  The Indian and Chinese EB-2 dates also moved ahead, with India progressing by 10 days and China by one month.  These progressions could mean that more visa numbers flow down to other categories.

MU continues to believe that the State Department should be accelerating these dates at a faster rate and will need to aggressively accelerate the dates in the next few months in order to ensure that all visas are used in fiscal year 2020.  We have said this for several months.  Very few immigrant visas have been issued in the last 60 days because of the COVID-19 crisis. 

Conspiracy rumors are out there.  Some are speculating that the White House is interfering and illegally holding back progressions. The State Department did not include any comments at the end of the Visa Bulletin.  This lack of transparency from the State Department is feeding the speculation.  At the very least the State Department should explain how it expect to use this year’s full allotment of immigrant visas.

TWENTY HOUSE CO-SPONSORS ON HR 6788 (HWRA)

Everyone has been working hard to drum up support for the HWRA in the Senate.  We have not however forgotten about the House and bill HR 6788.  We are pleased to announce that the bill now has 20 co-sponsors in the House of Representatives. We continue to have a bipartisan mix of House members from both the Democrats and Republicans, which is the best way to advance this important legislation.

Rep. Cole, Tom [R-OK-4]*

Rep. Finkenauer, Abby [D-IA-1]*

Rep. Bacon, Don [R-NE-2]*   

Rep. Rose, Max [D-NY-11]   

Rep. Woodall, Rob [R-GA-7]  

Rep. Cox, TJ [D-CA-21]  

Rep. O'Halleran, Tom [D-AZ-1]   

Rep. Swalwell, Eric [D-CA-15]   

Rep. Yoho, Ted S. [R-FL-3]   

Rep. Khanna, Ro [D-CA-17]   

Rep. Meng, Grace [D-NY-6]   

Rep. Peters, Scott H. [D-CA-52]   

Rep. Moolenaar, John R. [R-MI-4]   

Rep. Stewart, Chris [R-UT-2]   

Rep. Brooks, Susan W. [R-IN-5]   

Rep. Blunt Rochester, Lisa [D-DE-At Large]   

Rep. Johnson, Eddie Bernice [D-TX-30]   

Rep. Hayes, Jahana [D-CT-5]  

Rep. Hartzler, Vicky [R-MO-4] 

Rep. Bishop, Sanford D., Jr. [D-GA]

FOURTEEN SENATE CO-SPONSORS ON HWRA S.3599

Everyone has been working hard behind the scenes to drum up support for the HWRA.  We are pleased to announce that the bill now has 14 co-sponsors in the Senate.  We continue to have a bipartisan mix of Senators from both the Democrats and Republicans, which is the best way to advance this important legislation. In addition to Sen. Perdue (R-GA), we have:

Cosponsor
Sen. Durbin, Richard J. [D-IL]*
Sen. Young, Todd [R-IN]*
Sen. Coons, Christopher A. [D-DE]*
Sen. Cornyn, John [R-TX]*
Sen. Leahy, Patrick J. [D-VT]*
Sen. Paul, Rand [R-KY]
Sen. Carper, Thomas R. [D-DE]
Sen. Lankford, James [R-OK]
Sen. Wyden, Ron [D-OR]
Sen. Rounds, Mike [R-SD]
Sen. King, Angus S., Jr. [I-ME]
Sen. Ernst, Joni [R-IA]
Sen. Moran, Jerry [R-KS]

HWRA HOUSE BILL FORMALLY INTRODUCED

Members Brad Schneider (D-IL), Tom Cole (R-OK), Abby Finkenauer (D-IA), and Don Bacon (R-NE) introduced the HWRA into the US House of Representatives on May 8, 2020.  This is the House version of Senate bill S. 3599.  As with the Senate co-sponsors, this is another strong, bipartisan group of Representatives who are doing right by US patients and valuing the contributions of hard-working immigrants.

If enacted, the HWRA would:

-Grant visas to doctors (15,000), nurses (25,000), and their families (unreserved);

-Exempt HWRA visas from the per-country cap;

-Instruct DHS and DOS to prioritize these visa appointments so that these fully-qualified nurses can enter the US as fast as their visa appointments can be scheduled; and

-Mandate that employers attest that these immigrants will not displace an American worker.

HWRA FORMALLY INTRODUCED AND ASSIGNED S.3599

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act has been introduced into the Senate and assigned S. 3599.

The bill is up to six co-sponsors! 

Three Republicans: David Perdue (GA), Todd Young (IN), and John Cornyn (TX).

Three Democrats: Dick Durbin (IL), Chris Coons (DE), and Patrick Leahy (VT).

We expect to continue to grow this strong base of original co-sponsors.  We shortly will be announcing a companion bill in the House, with another impressive group of House members.

You may want to follow us on Facebook or Twitter for breaking news on this important bill.

MU on Facebook: https://www.facebook.com/MusilloUnkenholtLLC/

Chris Musillo on Twitter: https://twitter.com/ChrisMusillo  @ChrisMusillo

HEALTHCARE WORKFORCE RESILIENCE ACT FAQ

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act has been introduced into Congress.  The HWRA is smart, positive legislation that will increasing the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers.  Musillo Unkenholt and the AAIHR have been working closely with these offices for the last two months, assisting congressional staffers in drafting this legislation.

This is our FAQ about the legislation.

How does this help nurses and doctors currently in retrogression?

If the HWRA becomes law, all nurses and doctors whose visa applications are currently retrogressed immediately become current.  Likewise, any nurse or doctor whose I-140 is filed any time before 90 days after President Trump’s Emergency Declaration on COVID-19 also receives a retrogression-free visa, although there is an overall quota of 25,000 for RNs and 15,000 for MDs. 

What is retrogression?

There are thousands of fully qualified nurses and doctors who have been approved for US green cards but who are not in the US because of “visa retrogression.”  “Visa retrogression” is when a fully qualified visa applicant has to wait for a visa to become available because the EB-3 visa category is oversubscribed.  Right now, fully qualified Philippine and worldwide nurses must wait four years for a visa appointment because of the visa retrogression.  Indian nurses and doctors have a twelve year wait.

This legislation prioritizes fully qualified nurses and doctors by utilizing a portion of the hundreds of thousands of visas that have been authorized by Congress but have gone unused.

Does this legislation add any visas into the quota?

No. This legislation does not add visas to the overall visa quotas.  Likewise, it does not take visas from any other occupation.

The HWRA uses visas that Congress had previously authorized, but had gone unused from 1992-2020. 

Can spouse and children also receive immigrant visas?

Yes.  Spouse and under-21 children obtain visas at the same time as the nurse.  They may also follow to join.  These family members do not count against the overall 25,000 RN and 15,000 MD visa quota.

Are these nurses qualified to work in the US?

Absolutely.  Before any nurse can enter the US, the nurse must have:

(i)          Passed the US nursing licensing exam;

(ii)   Graduated from a university that is equivalent to a US nursing school;

(iii)       Passed an English fluency examination; and

(iv)       A spotless overseas nursing license. 

What protections are there for US labor?

Before the visa is issued, the employer must attest that the foreign trained nurse “has not displaced and will not displace a United States worker.’’

HEALTHCARE WORKFORCE RESILIENCE ACT PROVIDES NEEDED NURSES FOR US PATIENTS

Musillo Unkenholt is pleased to report that the Healthcare Workforce Resilience Act will be introduced into Congress next week.  The HWRA is smart, positive legislation that will increase the supply of nurses and doctors into the US.  These two occupations are among the shortest supplied occupations by US workers.  Musillo Unkenholt and the AAIHR have been working closely with these offices for the last two months, assisting congressional staffers draft this legislation.

If the HWRA becomes law, all nurses and doctors whose visa applications are currently retrogressed immediately become current.  Likewise, any nurse or doctor whose I-140 is filed anytime before 90 days after President Trump’s Emergency Declaration on COVID-19 is also expected to have a retrogression-free visa, although there is an overall quota of 25,000 visas for RNs and 15,000 visas for MDs.  The legislation contains language asking the USCIS and Embassies and Consulates to expedite these petitions.  The HWRA admirably contains US worker protections, guaranteeing that no US worker is displaced.

The HWRA has a strong set of original co-sponsors in the Senate: Sens. Perdue (R-GA), Young (R-IN), Durbin (D-IL), and Coons (D-DE).  This is an impressive bipartisan set of Senators with decades of experience leading legislative initiatives. 

In sum, the HWRA, with respect to nurses, does the following:

-Allows all fully-qualified foreign-educated nurses to have their visas granted, if they are currently in the retrogression queue or file their I-140s within ninety days of the President’s Emergency Declaration; and

-Instructs DHS and DOS to prioritize these visa appointments so that these fully-qualified nurses can enter the US as fast as their visa appointments can be scheduled.

SAY IT AGAIN: THE H-1B DOES NOT TAKE AWAY US WORKER'S JOBS

I run a version of this post every few years.  Here is the 2015 version.  The Economist liked the chart in that version of the post, replicating it here.   The data leads to the unimpeachable conclusion that the H-1B visa does not take away US workers jobs.  The H-1B visa fills jobs in industries where it is nearly impossible to find qualified US workers.

In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing.  It would be 264 days before the H-1B cap was reached. In 2010, it took 300 days until the H-1B cap was reached.  In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached.  Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, and every year since 2013, mirroring the low unemployment rate.

My chart from 2015.

 

The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.

Why?  Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates.  If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.

The President and his hackneyed hatchet man Steven Miller do not believe in data.  The President recently signed a ridiculous Executive Order limiting permanent residency visas (green cards) for 60 days.  The Order accomplishes nothing, but may set the table for a broader visa ban, which could include H-1Bs and other temporary visas.

Miller recently said that "the most important thing is to turn off the faucet of new immigrant labor,” as if this will save American jobs.  It won’t.  Limiting immigrant labor has never saved a single American job and it never will. 

Miller is plainly not interested in the American economy.  He gave away his real interest when he said that the temporary ban would limit "chains of follow-on migration."  That is Miller’s real interest: stopping all forms of legal migration, which he believes waters down American culture.  His goal is to centrally plan American culture in his image.

Politicians should see employment visas for what they are -- tools for growing industries to fill labor shortages.  Organizations -- and governments -- work better when they work on data and not on nonsense and rhetoric.

____

Here is an updated version of the chart.  The most important part of the data looks at the spike in unemployment from 2008-2014.  It is worth nothing that since 2014 we have had record levels of H-1B petitions, and full employment.

(Click on the chart to expand)