Musillo Unkenholt Law | Healthcare Immigration Blog

March 19, 2019
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SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019. In anticipation of that deadline, here areseven things to remember about the H-1B cap.

1. These types of cases are subject to the H-1Bcap:

· International studentsworking on an EAD card under an OPT or CPT program afterhaving attended a U.S. school;

· Internationalemployees working on a TN may need an H-1B filed for them in order for them topursue a permanent residency (green card) case;

· Prospective internationalemployees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with acap exempt organization; and

· Prospectiveinternational employees currently living abroad.

2. These types of cases that are not subject toH-1B cap:

· H-1B amendments/extensions/transfers

· When the employee hasbeen in H-1B status for less than 6 years

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

· MDs who have receiveda J-waiver of their 2 years foreign residency requirement.

· H-1Bs filed by institutionof higher education (or its affiliated or related nonprofit entities), anonprofit research organization, or a government research organization.

3. Employees witha U.S. master’s degree or higher get twochances at the H-1B cap. TheUSCIS first runs an H-B cap lottery, including all cases. This is for the 65,000 H-1B regular capslots. Then, the USCIS runs a MastersCap H-1B lottery to determine 20,000 lottery winners.

4. Cap-Gap Rule:USCIS automatically extends the H-1B status of OPT F-1 students who win theH-1B lottery. The OPT F-1 status is extended through October 1, at whichpoint the status converts to H-1B by operation of law.

5. An Employee does not have to hold H-1B status for theemployer to initiate green card process. This can be started while the employeeis on F-1 or most other statuses.

6. We do notrecommend that F-1 students travel outside the US while their H-1B cap petitionis pending at USCIS. USCIS may considerthe petition to be abandoned. If the F-1student does travel, the employee is required to apply for an H-1B visa abroadbefore re-entering the US.

7.The employee’s proposed worksite may not change until the H-1B CAP petition isapproved. If the worksite changes the USCIS is inclined to deny thecase. If possible, the H-1B cap petition should be upgraded viaPremium Processing. Upon approval of the H-1B, the employer can filean H-1B amendment.

March 15, 2019
Uncategorized

APRIL 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issuedthe April2019 Visa Bulletin.This is the seventh Visa Bulletin of Fiscal Year 2019. This blog post analyzesthis month’s Visa Bulletin.

April 2019 Visa Bulletin

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

Class

All Other

CHINA

INDIA

PHILIPPINES

EB-1

01FEB18

22FEB17

01JAN18

EB-2

01APR16

09APR09

EB-3

01AUG15

22MAY09

01MAR18

Table B: Dates for Filing — The DOSmay work on applications with these dates. But the Visa cannot be approveduntil the date is current per Table A.

Class

All Other

CHINA

INDIA

PHILIPPINES

EB-1

01JUN18

01OCT17

01JUN18

EB-2

01JUL16

01JUN09

EB-3

01JAN16

01APR10

01JUL18

MU Law Analysis (all references are toTable A unless noted)

All Other: The EB-1 categorymoved one month. We expect continuedsteady movement in this category for All Other. We do not see any retrogression in the future for EB2 or EB3, other thanthe usual retrogression at the end of the Fiscal Year.

China: China EB-2 again moved threemonths, moving a almost one year in 2019’s calendar months. EB-3 actually retrogressed, which reflectscontinued demand in EB-3, likely related to the many EB-3 “downgrades”.

India: There was very little movementin any of the Indian categories. EB2moved just three days. EB3 moved onemonth. We are slightly more optimisticabout India EB-3, which should continue to progress faster than EB-2.

Philippines:The EB-3 date showed great progress, improving four more months. This continues a great year for EB3. We expect continued progress in May’s VisaBulletin.

March 13, 2019
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USCIS ALLOWS PREMIUM PROCESSING FOR ALL H-1B PETITIONS

EffectiveTuesday March 12, 2019, USCISwill again allow premium processing on all H-1B petitions. While this is welcome news, the window ofupgrading H-1B petitions to the Premium Processing Service may be short. In 2018, USCIS suspended premium processing onH-1B transfers and amendments effective September 11, 2018.

Theonly exceptions to the September 2018 USCISpremium processing suspension were for H-1B extensions (i) with thesame employer or (ii) H-1Bs for cap-exempt institutions, such as Universitiesor research organizations.

Accordingly,if you have a pending H-1B petition, you may only have a few months to upgradeto premium processing. It is impossibleto say what USCIS will do because the USCIS often makes these announcementswith very little warning. Conceivably,the USCIS may not even wait until September to suspend premium processing on H-1Btransfers and amendments.

Although no announcementhas been made, it is expected that USCIS will not allow April 1, 2019 cap-subjectH-1B petitions to take advantage of premium processing.

March 12, 2019
Uncategorized

THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS WILL DECIMATE NURSE IMMIGRATION

The Fairnessfor High-Skilled Immigrants Act (H.R. 1044), co-sponsored byReps. Zoe Lofgren (D-CA), Ken Buck (R-CO), and 200+ bipartisan members and the companionSenate bill S. 386 sponsored by Sens. Mike Lee (R-UT) and Kamala Harris (D-CA) with 15+co-sponsors) would amend the Immigration and Nationality Act by eliminatingper-country caps for employment-based immigrant visas, aspires to a worthygoal: a more equitable immigration system. However,this proposal as it is drafted, would inadvertently devastate access to healthcare in the United States by restricting the immigration and hiring offoreign-educated registered nurses.

It is not law but could become law in 2019. In order to become law, the bill would needto pass both houses of the US Congress and be signed by the President. It is likely at least several months beforeCongress takes any action on the bill.

Thelaw allows for 140,000 Employment-Based visas per year, of which 80,080are used by EB-2 and EB-3. The Fairness Act does not change thesenumbers. It just re-orders the queue in which the numbers are claimed. As of April 2018, there were approximately550,000 EB-2 and EB-3 Indian immigrants and their spouses and minor childrenwaiting for green cards. Additionally, there are 25,000 Chinese and 21,000Philippine immigrants and their spouses and minor children also waiting forgreen cards. Noother countries have material retrogressions. In total the visabacklog for EB-2 and EB-3 is about 596,000.

Ata run rate of 80,080 per year and a backlog of 596,000, there will be apermanent EB-2, EB-3 retrogression of 7.45 years (596,000 / 80,080 =7.45). No hospital is going to sponsor anurse today who is not going to arrive for 7.45 years.

UnlikeIT workers, nurses are ineligible for H-1B visas. Therefore, while IT professionals are able to work inside the US whileawaiting their retrogression, nurses and other healthcare occupations wouldneed to wait outside the US for 7+ years.

The Fairness forHigh-Skilled Immigrants Act has a worthwhile aim: eliminating the incrediblylong backlog for Indian EB2 and EB3 applicants. Musillo Unkenholt is in favor of the bill, provided that it is modifiedin a way to allow nurses to continue to come to the US. As it is currently structured, the Fairness forHigh-Skilled Immigrants Act would eliminate nurse immigration into the US.

March 7, 2019
Uncategorized

STAFFING AND SERVICES COMPANIES UNDER ATTACK FROM USCIS

Staffing companies are under attack from the USCIS. H-1B denial rates at service and staffing companies greatly exceed H-1B denial rates at non-staffing companies. For instance, a recent Forbes article points out that,

“In FY 2018, USCIS denied 80% of the H-1B petitions for new (initial) employment for Capgemini, a French multinational, 61% for U.S. company Cognizant, and between 34% and 54% for IT services companies Syntel, Infosys, Mindtree and HCL America. To put these figures in perspective, major U.S. tech companies, including Amazon, Facebook and Apple, had 1% or 2% of their new H-1B petitions denied in FY 2018.”

The problem was once limited to IT staffing companies, but MU is aware of many healthcare staffing companies who are also seeing unprecedented RFEs. A recent change to the LCA form now requires all H-1B employers to reveal client names and worksites.

Adding to the concern is the long-rumored H-1B regulatory change that will cement current H-1B policies against third-party placement of H-1B workers, make a stricter definition of specialty occupation, and raise prevailing wages. If past changes are any guide, these regulatory changes will probably have little basis in Congressional statute.

February 25, 2019
Uncategorized

H-4 EAD ELIMINATION REGULATION TO BE ANNOUNCED SHORTLY

As we have mentioned severaltimes, the Trump Administration is seeking to eliminate 90,000 lawful jobs byending the H-4/EAD rule. This rule,which was firstpassed in February 2015, provides work authorization to spouses ofH-1B workers, provided that the H-1B worker has an approved I-140.

USCIS sent the new regulation, “Removing H-4 Dependent Spouses from the Class of AliensEligible for Employment Authorization,” to the Office ofManagement and Budget on February 20, 2019. It is currentlypending review. OMB is expected to publish a Notice of proposedrulemaking in the near future, although OMB has not released a timeline. The publication of the notice will allow the publicto offer notice and comment.

After the notice and comment period, USCIS must review andconsider the public’s comments, before publication of the final rule. Unfortunately, it is not expected that thepublic’s comments will materially change the new rule’s core goal: theelimination of the H-4/EAD.

This needless attack against lawful workers is furtherproof that the Trump Administration is not at all interested in legalimmigration, despite the President’spublic statements. Thereality is that the President and his administration are only interested inharming immigrants: lawful and otherwise.

February 15, 2019
Uncategorized

MARCH 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March2019 Visa Bulletin. This is thesixth Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month’sVisa Bulletin.

March 2019 Visa Bulletin

Table A: Final Action Dates — Applications with these datesmay be approved for their Green Card (Permanent Residency card) or ImmigrantVisa appointment.

EB Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JAN18	22FEB17	22FEB17	01JAN18
EB-2	C	01JAN16	09APR09	C
EB-3	C	08JUL15	22MAY09	01DEC17

Table B: Dates for Filing — The DOS may work onapplications with these dates. But the Visa cannot be approved until the dateis current per Table A.

EB Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	01MAY16	22MAY09	C
EB-3	C	01JAN16	01APR10	01MAR18

MU Law Analysis (all references are to Table A unless noted)

All Other: TheEB-1 category moved one month. We expectcontinued steady movement in this category for All Other. We do not see any retrogression in the futurefor EB2 or EB3, other than the usual retrogression at the end of the FiscalYear.

China: China EB-2 movedthree months, moving a total of a half year in just two calendar months. EB-3 only moved one week, as demand continuesin EB-3, likely related to the many EB-3 “downgrades”.

India: There was verylittle movement in any of the Indian categories. We are slightly more optimistic about IndiaEB-3, which could continue to progress faster than EB-2.

Philippines: TheEB-3 date showed great progress, improving four more months. By next month, we should see the EB-3priority date extend into FY2018.

February 4, 2019
Uncategorized

MARIA SCHNEIDER BECOMES AN MU PARTNER

MusilloUnkenholt (MU) is pleased to welcome Maria T. Schneider as a partner to the lawfirm. Schneider’s practice is focused on immigration matters, primarily in assistingUS employers in hiring foreign workers for specialized positions and shortageoccupations. Schneider has beenan attorney with MU since 2011 and will continue to represent clients from a range of industries, including healthcare,information technology, recruitment, staffing, construction, engineering,finance, and consulting in all phases of the immigration process. Schneider’s clients include large public andprivate companies as well as small start-up, entrepreneurial ventures. Schneider is a life-long resident ofCincinnati, attending Northern Kentucky University as an undergraduate and theUniversity of Cincinnati College of Law. Schneider currently serves on the Cincinnati Bar Association, Board ofTrustees and teaches immigration law as an adjunct at the University ofCincinnati College of Law.

February 1, 2019
Uncategorized

REMINDER: H-1B CAP STRATEGY TELECONFERENCE

In anticipationof the H-1B cap filing date of April 1, 2019, MU Law will be holding a freeteleconference for our clients and friends on Wednesday February 6, 2018 at 2PM/ 11AM PT. Interested clients and friends can register for our webinar byclicking on the link below.

REGISTERHERE

Lastyear the H-1B cap was reached in the first week. We expect that thedemand will be even greater this year. It is imperative that all H-1Bcap-subject petitions are filled on April 1, 2019.

H-1B Teleconference Agenda

•H-1B Cap Basics and Projections

•H-1B Dependency

•H-1B issues for Staffing Companies and Third Party Placements

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

•Employer-Employee relationships

•The New H-1B lottery

•H-1B electronic filing

Hotissues:

•Cap-gapfor F-1s

•CPT / OPT maintenance

•NIV maintenance

•H-4 EAD rule

•H-1B amendments: lengthy processing times

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

•Legislative Update

• What we can expect from the Trump administration and the Republican congress.

• Q&A

January 31, 2019
Uncategorized

USCIS TO IMPLEMENT H-1B CAP RULE CHANGING MASTER’S CAP IN APRIL 2019 AND ADDING PRE-REGISTRATION REQUIREMENT IN APRIL 2020

The USCIS postedfor public inspection a final rule changing the regulationsgoverning H-1B cap-subject petitions. This new makes two key changes to the H-1B cap:

1. Master’s Cap Allocation. The new rule reverses the order bywhich USCIS selects H-1B petitions under the H-1B regular cap and the master’scap. USCIS will technicallyre-engineer the way that it conducts the H-1B lottery. The result ofthe re-engineering should mean that a slightly greater number of H-1B petitionswill be approved for US master’s degree H-1B beneficiaries than under thecurrent H-1B lottery system. We previously explained this processon anearlier blog. This change will be implemented on April 1,2019.

2. Pre-Registration Requirement. The rule introduces an electronicregistration requirement for petitioners seeking to file H-1B cap-subjectpetitions. Under the new rule, all H-1B lottery petitions will need tobe electronicallypre-registeredduring the H-1B pre-registration period from April 1-7. After thepre-registration period has concluded, USCIS will run the H-1Blottery. All H-1B lottery winners will then submit the actual H-1Bpetition. If implemented properly, this should save petitioners andthe industry significant expense.

After considering public feedback,USCIS decided to suspend the electronic pre-registration requirement untilthe April 2020 cap season in order to complete user testing and ensure thesystem and process are fully functional.

USCIS will begin accepting H-1B cap petitions onApril 1, 2019.

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