Healthcare Blog

Aspart of its process in retiring the previously used, Adjudicator’s FieldManual, USCIS recently released updated guidance on Schedule A designations inits Policy Manual. While the guidance is substantively unchanged for the mostpart, USCIS has added more detail which will hopefully result in moreconsistent adjudication.  This chapter inthe Policy Manual can be found in its entirety on the USCIS website:

https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-7

Hereare two notable changes/updates: 

NoRequirement for end-client contracts.  Employers that staff Physical Therapists orRegistered Nurses at third party worksites will be pleased to find that USCIShas explicitly stated in the Policy Manual that there is no requirement for anemployer to provide contracts between itself and its clients. Over the pastseveral years our firm had seen an increasing trend of RFEs requesting suchcontracts. It would seem that USCIS is at the very least acknowledging thatclient contracts are not an evidentiary requirement. 

USCISstill retains the right to request such contracts if it has a “reasonable andarticulable reason” that there is not a bona fide job offer available. Therefore,while USCIS acknowledges that it is not a requirement, it is likely that theService will still make requests for client contracts, but perhaps in lesscases. 

Onlyone 9089 is required, perhaps.  Traditionally,a Schedule A, I-140 petition required two uncertified ETA Form 9089s withoriginal signatures. The requirement for a duplicate ETA Form 9089 is no longerpresent in this update. Historically, USCIS required a duplicate copy so that uponapproval, USCIS would retain a copy, and the other would be provided to theDOL. That process is also missing from the Policy Manual now, and instead itindicates that USCIS will simply retain the ETA Form 9089 whether the petitionis approved or denied. Without further confirmation of this change though, itwould be prudent to still include the duplicate copy with the I-140, but ourfirm will monitor if further clarification is made by USCIS.

In a striking rebuke of the TrumpAdministration’s attempts to dismantle legal immigration, the U.S. DistrictCourt for the Northern District of California has set aside both (i) the DHSinterim final rule (IFR), Strengthening the H-1B Nonimmigrant Visa ClassificationProgram, and (ii) the DOL IFR, Strengthening Wage Protections for the Temporaryand Permanent Employment of Certain Aliens in the United States.  

This twin-killing of Trump policy doesseveral things:

• It reinstates the prior DOL OES wagesurvey back to the formula that has been in place for more than a decade.
• It resets H-1B law, allowingthird-party placement, three year-approval notices and a fuller range ofapprovable H-1Bs. 

The Court’s decision, which was issuedlast night, said that, the Administration, "failed to show there was goodcause to dispense with the rational and thoughtful discourse that is providedby the APA's notice and comment requirements.” MU Law will provide updates as more information is available. 

The Department of State has just issued the December2020 Visa Bulletin. This is the third VisaBulletin of Fiscal Year 2021. This blog post analyzes this month's VisaBulletin.

December 2020 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 again announced that it will allow the more favorable Dateof Filing chart for I-485 Adjustment of Status.This means that all employment-based immigrants in EB-1, EB-2 or EB-3 can filetheir I-485s.  However, if they arenatives of India or China, their priority date must be earlier than thesedates:

MU Law Analysis

Unlikelast month, the DOS issued a timely Visa Bulletinfor December. 

Both the Philippines and Worldwide (All Other) EB-3 continueto be current.  We expect these categoriesto stay current for the foreseeable future. The only constraint to the Philippine EB-3 visas being issued is thecapacity at the Embassy in Manila.  Itremains to be seen how increasing COVID infection rates bear on embassiescapacities.

India had another month defined by variance.  India EB-1 moved ahead sixmonths.  India EB-2 and EB-3 eachmoved ahead by about 1-2 weeks.  Theinteresting news was that the Dates of Filing for India EB-3 retrogressed by ayear, reflecting the fact that an enormous number of India EB-3 I-485s havebeen filed in October and November.  Thisretrogression probably means that no further material progress will happen inIndia EB-3 for a long time.

China EB-2 and EB-3 both moved forward by a few weeks, a trend that maycontinue.  China EB-1 showed moreprogress than expected, perhaps because of declining rates of visa issuance outof the American posts in China.

MUexpects that future Visa Bulletins will continue to have positive news, includingslow but continued forward progression in the Chinese and Indian categories.  We also expect the Philippine and Worldwidecategories will remain current for the foreseeable future.

Theplatform for MU’s webinar scheduled for Monday, November 16^th discussingthe Recap of Changes from the USCIS, DOL, AND DOS has changed from Livestorm toZoom.

On November 2, 2020, DHS published in the Federal Register its proposed new rule for the 2021 CAP thatwould give priority to H-1B CAP candidates whose employer promises to pay thehighest of the Occupational Employment Statistics (OES) wage levels. 

The OES categorizes wages from Levels I throughIV for a particular position in a Metropolitan Statistical Area (MSA). In theH-1B context, the employer then chooses the appropriate wage level based on theexperience and complexity of the position and can file a Labor ConditionApplication (LCA) using the OES wage assigned. 

According to the DHS’s proposed rule, only thoseH-1B CAP registrations offering the highest OES wage levels would be selectedfor filing in the 2021 CAP. This means that DHS would first accept Level IVwages, then Level III, etc. 

Keeping with the 2020 CAP changes, theUSCIS’s current intent is to continue its electronic pre-registration system,requiring first a registration period of CAP petitions, and a later period offiling. DHS’s proposed rule intends to add a wage level question to itspre-registration form so that only the highest wage levels are selected forfiling. 

The Master’s CAP, an allotment of 20,000 H-1Bsdesignated only for candidates possessing a master’s degree from an accreditedU.S. university, is also in place for the 2021 CAP period. 

MU Law will be hosting a free webinar for ourclients and friends on Monday, November 16, 2020 at 2PM Eastern (1PM Central). Interestedclients and friends can register for our webinar by clicking on the link below.

Atour recent webinar, MU attorneys discussed the new DOL wage rule and how itcould greatly raise prevailing wages for H-1B petitions and EB-2 and EB-3 greencards.  Moreon this topic here.   Wewant to give our clients and friends two updates: 

1.  Lawsuit.  MU along with some clients and the US Chamberof Commerce have been working on a lawsuit against both the DOL and theUSCIS.  USChamber of Commerce press release.  The lawsuit seeks to overturn both the newDOL wage computation used in their OES wage survey, and the three harsh changesto the H-1B definition.  The lawsuit wasfiled last week and there is a hearing on the case set for November 23.  If successful, the DOL and USCIS regulationscould be nullified. 

2.  Alternative Wage Surveys.  The new DOL rule only raises the OES survey,which is the default survey used in H-1B cases, and in PWDs, which are used inEB-2 and EB-3 green card petitions.  Thelaw still allows “alternative surveys.” An alternative survey is any published or private survey that meetscommon statistical metrics, is recent, is geographically relevant, and coversthe position in question.  

The Department of State has just issued the November 2020 VisaBulletin. This is the second Visa Bulletin of Fiscal Year 2021. This blogpost analyzes this month's Visa Bulletin.

November 2020 Visa Bulletin

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

Table B: Dates of Filing

Importantly, the USCIS announcedthat it will allow the more favorable Date of Filing chart forI-485 Adjustment of Status. This means that all employment-based immigrants inEB-1, EB-2 or EB-3 can file their I-485s starting October 1, 2020.  However, if they are natives of India orChina, their priority date must be earlier than these dates: 

For reasons that remain unclearthe Department of State held back on publishing this Visa Bulletin about 2weeks longer than usual.  Nevertheless,the Visa Bulletin showed continued positive trends. 

Both the Philippines andWorldwide (All Other) EB-3 continue to be current.  We expect these categories to stay currentfor the foreseeable future.  The onlyconstraint to the Philippine EB-3 visas being issued is the capacity at theEmbassy in Manila.  It remains to be seenhow increasing COVID infection rates bear on embassies capacities.

The good news extended to India.  India EB-1, EB-2 and EB-3 all movedforward, ranging from several weeks to several months in all of thesecategories.  Similarly, China EB-1,EB-2 and EB-3 all moved forward at about the same rates as India.

MU expects that future VisaBulletins will continue to have positive news, including continued forwardprogression in the Chinese and Indian categories.  We also expect the Philippine and Worldwidecategories will remain current for the foreseeable future.