Health Care Blog

TheNational Visa Center (NVC) has announced that it is suspending its telephone inquiryline effective May 23, 2022. The move comes as an attempt to address a backlogof inquiry requests at the NVC.

TheNVC is facing “critical backlogs” of inquiry requests, and current responsetimes to inquiries are approximately 2 months. The NVC will still accept inquiryrequests for immigrant cases using its onlineform, but asks that follow-up inquiries not be made while the first inquiryis still within the NVC’s reported responsetimeframe.

TheNVC has not yet announced when it expects to resume accepting inquiry requestsvia telephone.

Aspart of its initiativeto expand premium processing eligibility, on May 24, 2022, USCISissued a news alert that its premiumprocessing program will be expanded to include certain pending I-140 petitionsfiled under the EB-1 and EB-2 categories.

Thisexpansion of premium processing only applies to certain previously filed FormI-140 petitions and will occur in phases:

·        Beginning June 1,2022, USCIS will accept Form I-907 premium processing upgrade requests for E13multinational executive and manager petitions received on or before Jan. 1,2021.

·        Beginning July 1,2022, USCIS will accept Form I-907 premium processing upgrade requests for E21NIW petitions received on or before June 1, 2021, and E13 multinationalexecutive and manager petitions received on or before March 1, 2021.

New(initial) I-140 filings for the categories above are not eligible forpremium processing at this time.

USCISwill reject any premium processing requests for the classifications above thatare filed before the appropriate start date. 

TheDepartment of State has just issued the June2022 Visa Bulletin.  This is the ninth VisaBulletin of Fiscal Year 2022. This blog post analyzes this month’s VisaBulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart forI-485 employment-based filings. See: USCISVisa Bulletin Dates

MU Law Analysis

You willnotice that we have added another row, Other Workers.  These are EB-3’s for occupations that requireless than two years of education or experience to perform the job.  Among healthcare occupations, there are mostcommonly nurse aides.  The retrogressionto 08May2019 probably reflects full usage of this category in this fiscal year.

For theother categories, we saw exceptional news for India EB-2, which advanceda full year.  All EB-1, along withWorldwide and Philippine EB-3 remained current.  We do expect a retrogression of WW andPhilippine EB-3 before the end of the fiscal year.  This is common, as wehave explained in the past.

EB-3 India and EB-3 China will remainunchanged from May.  We do not expectforward progress in these categories for the rest of the fiscal year.

BeginningMay 4, 2022, the USCIS’s automatic extension period for certain EAD categorieswill temporarily increase from 180 days to upto 540 days.

Thisis a welcomed change in policy as many EAD extension petitions currently takemore than 180 days to be adjudicated. Under the previous policy, an EAD holderwas forced to stop working if the extension petition was not approved withinthe 180 days automatic extension period. Increasing the automatic extensionperiod to up to 540 days will provide relief to many EAD holders and helpprevent gaps in employment.

Theautomatic extension only applies to certain categories of EAD holders whotimely file an extension petition before the expiration of their previous EAD. Thisincludes H4 EAD holders with a valid I-94 and green card applicants. A fulllist of qualifying categories can be found on USCIS’s website.

Unfortunately,OPT-based EADs and applicants changing the category their EAD is authorizedunder are not eligible for the automatic extension.

Theincreased automatic extension period will end on October 26, 2023.

In a Broadcast Message, theStudent and Exchange Visitor Program (SEVP) has announced it will extend its guidance originally issued in March2020 for the 2022-23 academic year.

SEVP has also extended theguidance in its FAQs for SEVP Stakeholders about COVID-19 to the 2022-23academic year.

Thus, the followingallowances for continuing and new nonimmigrant students will be extended forthe 2022-23 academic year:

•     Continuing Students

o Nonimmigrant students who were in valid F-1 orM-1 nonimmigrant status on March 9, 2020 are permitted to engage in either ahybrid or fully online program of study beyond the regulatory limit for the2022-23 academic year, provided they have not otherwise violated the terms of theirnonimmigrant status. 

•       Initial Students

o  New or initial nonimmigrant students who were notenrolled in a program of study on March 9, 2020 will not be able to enter theUnited States as a nonimmigrant student for the 2022-23 academic year if theircourse of study is fully online.

o  A new student is, however, permitted to engage ina hybrid program with some requirement for in-person learning, even with onlinecomponents beyond the regulatory limit, for the 2022-23 academic year.

SEVP’s current policyguidance and frequently asked questions can be found online at https://www.ice.gov/coronavirus

USCIS announced that it has received 483,927 H-1B cap registration during the March 2022 filingperiod, including petitions filed for the advanced degree exemption. 

This is substantially more than the 308,613 received last year(March 2021, FY 2022).  It is also far more than the 275,000 duringthe March 2020 (FY 2021) filing period and 201,000 H-1B petitions receivedduring the March 2019 (Fiscal Year 2020) filing period.

USCIS has notified H-1B cap lottery winners.  H-1B winners have until June 30, 2022 tosubmit their full H-1B cap petition to the USCIS for adjudication. 

As has been the case since the launch of the on-line registrationsystem in March 2020, the USCIS will continue to update the H-1B cap winnerslist.  Additional winners may be selectedin subsequent rounds until March 2023. USCIS is not expected to notify any H-1Blottery entrants of non-selection until all 85,000 H-1B cap approval notices havebeen issued.

Sentosa Care agreed topay $3 million to settle a lengthy class action case that has endured for fiveyears, reports Skilled Nursing News. This $3 million settlement extinguishes all claims for the 150 classmembers, including their TVPA violations.

In 2021, a federal judge found that Sentosa was liable for $1.56million, plus interest and the risk of additional damages.  The TVPA violations were novel in nursestaffing cases.  Ordinarily courts allowdamage clauses to be inserted into employment contracts.  However here, the federal judge found that theclause represented a threat to continue employment because a prior court hadfound Sentosa’s damage clause was unenforceable, allowing the TVPA claim tocontinue.  Sentosa has now settled allclaims associated with the case.

Sentosa’s involvement inlitigation is often unusual.  In March2022, Reuters reported that remnants of a 2006 case continueto circulate throughout the federal court system.  As MU Law discussed in 2010,

In 2006, eleven Philippine nurses employed ata Suffolk County, Long Island nursing home walked off their positions becauseof alleged bad working conditions. This mass resignation set off a chain oflawsuits [including one where the nurses] filed a federal civil rights lawsuitagainst . . . the Suffolk County District Attorney’s office.

The March 2022 Reuters report says that a 2-1 federal appealscourt has now held that the Suffolk County DA’s office is immune from thislawsuit.  One wonders if this ends this16 year litigation.

TheDepartment of State has just issued the May 2022 Visa Bulletin.  This is the eighthVisa Bulletin of Fiscal Year 2022. This blog post analyzes this month’s VisaBulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart forI-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The EB dates stayed more or less static from the prior month,although India EB-2 advanced by 2 months, which should continue to allowadditional long-delayed Indian nationals to apply for their green cards.  India EB-2s Dates of Filing also progressedto December 1, 2014.  All other Indianand Chinese EB-1, 2 and 3 dates remained as they were in April.

The news remained positive for Philippines and Worldwide EB-3,where dates held at Current. 

USCIS has announced that it has received more than 85,000 registrations during theregistration period to reach the fiscal year (FY) 2023 H-1B cap.  The annual H-1B limit is 85,000, which is theH-1B cap.  Accordingly, the USCISprocessed the H-1B lottery.  MusilloUnkenholt has begun the process of notifying our clients who are H-1B lotterywinners that they are eligible to file an H-1B cap-subject petition.

H-1Bcap-subject petitions for FY 2023 may be filed with USCIS beginning April 1,2022 through June 30, 2022. 

Please keepin mind that “winning” the lottery does not guarantee an H-1B approval.  Petitioners filing H-1B cap-subjectpetitions, including those petitions eligible for the advanced degreeexemption, must still establish eligibility for petition approval at the timethe petition is filed and through adjudication, based on existing statutory andregulatory requirements.

In past years,the USCIS has not received enough H-1B cap petitions during the April 1-June 30period to meet the 85,000 H-1B annual limit. If this happens this year, USCIS will conduct subsequent lotteryselections until it has approved 85,000 H-1B petitions.

On March 18, 2022, USCIS issued a Policy Alert, andupdated its Policy Manualaccordingly, to apprise certain spouses of E and L nonimmigrants how the USCIS plansto verify their employment authorization.

As of November 12, 2021, USCIS has indicated that certain E-1, E-2,E-3 and L-2 nonimmigrant dependent spouses will be granted employment authorizationincident to status.  

 In its updated Policy Alert on the issue, USCIS indicates that:

• As of January 30, 2022, USCIS and U.S. Customs and Border Protection(CBP) began issuing Forms I-94 with the following new Class of Admission (COA)codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S.

An unexpired Form I-94 reflecting one of these new codes is acceptableas evidence of employment authorization for spouses under List C of Form I-9.

• For E and L spouses with Forms I-94 issued by USCIS prior to January30, 2022 (with notations E-1, E-2, E-3, E-3D, E-3R, or L-2), USCIS will mail anotice regarding the new COA codes that, together with an unexpired Form I-94reflecting E-1, E-2, E-3 E-3D, E-3R, or L-2 nonimmigrant status, may serve asevidence of employment authorization under List C of Form I-9.

USCIS intends to begin mailing notices on or about April 1, 2022.