Musillo Unkenholt Law | Healthcare Immigration Blog

January 29, 2019
Uncategorized

H-1B CAP STRATEGY TELECONFERENCE

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

REGISTER HERE

Last year the H-1B cap was reached inthe first week. We expect that the demand will be even greater this year. It is imperative that all H-1B cap-subject petitions are filled on April1, 2019.

H-1B Teleconference Agenda

· H-1B Cap Basics and Projections

· H-1B Dependency

· H-1B issues for Staffing Companies andThird Party Placements

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

· Employer-Employee relationships

· The New H-1B lottery

· H-1B electronic filing

Hot issues:

· Cap-gap for F-1s

· CPT / OPT maintenance

· NIV maintenance

· H-4 EAD rule

· H-1B amendments: lengthy processingtimes

· Top 10 things H-1B employers can do tostay compliant

· Legislative Update

· What we can expect from the Trumpadministration and the Republican congress.

Q&A

January 28, 2019
Uncategorized

USCIS WILL RESUME PREMIUM PROCESSING ON H-1B CAP CASES FILED IN APRIL 2018

USCIS will resume premiumprocessing effective January 28, 2019 for all H-1B cap petitionsfiled in April 2018. If a request forevidence (RFE) has been issued, the case can be upgraded to premium processingupon submission of the RFE Reply.

At present, H-1B extensionsfiled with the Nebraska Service Center are eligible for premium processing.

The previouslyannounced suspension of premium processing for all other categoriesof H-1B petitions remains in effect. The USCIS plans to resume premiumprocessing for the remaining categories of H‑1B petitions as agency workloadspermit.

January 22, 2019
Uncategorized

PHILIPPINES REMOVED FROM H-2 VISA LIST

The USCIS has publisheda notice in the Federal Register announcing changes to countries whoare eligible to supply workers pursuant to the H-2 visa program. The Philippines is no longer one of thecountries that is eligible to supply workers under this program.

This is an annual notice publicationthat covers the period from January 19, 2019 – January 18, 2020.

It is important to note that this hasno impact whatsoever on Registered Nurses, Physical Therapists, MedicalTechnologists and other allied healthcare workers. These healthcare workers are normally filedunder the H-1B visa (temporary non-seasonal workers) or Green Cards (Permanentresidents). H-2 visas are normallyassociated with agricultural workers, trades workers in fields likeconstruction, and other seasonal workers such as those in resorts or thefishing industry.

The rationale for eliminating thePhilippines from the H-2 program is explained in the report. This decision will be revisited in January2020.

ThePhilippines has a high H-2B overstay rate. In FY 2017, DHS estimated thatnearly 40 percent of H-2B visa holders from the Philippines overstayed theirperiod of authorized stay. Additionally, among all U.S. posts throughout theworld, U.S. Embassy Manila issues the greatest number of T-derivative visas(T-2, T-3, T-4, T-5, T-6), which are reserved for certain family members ofprincipal T-1 nonimmigrants (certain victims of a severe form of trafficking inpersons). U.S. Embassy Manila issued approximately 40 percent of the totalT-derivative visas issued worldwide from FY 2014-2016. A recent review ofcertain T-1 status recipients, whose spouses were issued T-2 visas during thissame period, shows that approximately 60 percent were determined to have beentrafficked to the United States on H-2B visas. DHS and DOS are concerned aboutthe high volume of trafficking victims from the Philippines who were originallyissued H-2B visas and the potential that continued H-2B visa issuance mayencourage or serve as an avenue for future human trafficking from the Philippines.DHS and DOS also believe that these overstay and human trafficking concerns aresevere enough to warrant removal from the H-2A visa program as well. Thisconcern is informed by a four-fold increase in H-2A visa applications fromnationals of the Philippines between FY 2015-2018. The Philippines’ continuedinclusion creates the potential for abuse, fraud, and other harm to theintegrity of the H-2A or H-2B visa programs.

January 14, 2019
Uncategorized

FEBRUARY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

TheDepartment of State has just issued the February2019 Visa Bulletin. This is the fifth Visa Bulletin of Fiscal Year2019. This blog post analyzes this month’s Visa Bulletin.

February 2019 VisaBulletin

TableA: Final Action Dates — Applications with these dates may be approved fortheir Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01DEC17	08FEB17	08FEB17	01DEC17
EB-2	C	01OCT15	06APR09	C
EB-3	C	01JUL15	22APR09	01AUG17

TableB: Dates for Filing — The DOS may work on applications with these dates. Butthe Visa cannot be approved until the date is current per Table A.

EB Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	01NOV15	22MAY09	C
EB-3	C	01JAN16	01APR10	01OCT17

MULaw Analysis (all references are to Table A unless noted)

AllOther: As weexpected, the EB-1 category again moved several months. We expect continued steady movement in thiscategory for All Other. We do not seeany retrogression in the future for EB2 or EB3, other than the usualretrogression at the end of the Fiscal Year.

China: Likewise, the China EB-1 categoryprogressed several months. This category may not move as fast as All Other inthe next few Visa Bulletins. China EB-2moved two months. EB-3 only moved a fewweeks, reflecting continued high demand. Still, we expect EB-3 to slightly outpace EB-2 in the next few VisaBulletins.

India: India EB-2 moved by just one week. EB-3 progressed by six weeks. Weexpect the slow/no progress to be standard for EB-2 in the first part of FY2019. We are slightly more optimisticabout India EB-3, which could continue to progress faster than EB-2.

Philippines: The EB-3 date showed steadyprogress, improving by six weeks. Over the course of FY2019, we shouldeventually see the EB-3 priority date extend into FY2018.

January 8, 2019
Uncategorized

H-1B COMMENT PERIOD CLOSED

Last month USCIS published two proposed rules to the H-1B cap process. As we noted on December 5, 2018:

The two rules are:

1. Electronic pre-registration for the H-1B cap. This is a proposed rule that has been considered by USCIS since 2011. Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7. After the pre-registration period has concluded, USCIS will run the H-1B lottery. All H-1B lottery winners will then have 60 days to submit the actual H-1B petition. If implemented properly, this should save petitioners and the industry significant expense.

2. H-1B Masters Cap Allocation Preference. USCIS will technically re-engineer the way that it conducts the H-1B lottery. The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery. We previously explained this process on an earlier blog.

Now that the comment period has ended the USCIS must read and consider all of the comments, which were plentiful. Many of the comments focused on the fact that rushing this proposal forward for the April 1, 2019 H-1B cap is a bad idea. MU Law agrees that the USCIS is moving too fast with these recommendations.

The USCIS has not announced a timetable for a decision as to whether the proposed changes will be adopted and, if so, whether they will go into effect for April 2019. It is however expected that they will make a decision by February.

December 21, 2018
Uncategorized

DENIAL OF “ADVANCED PAROLE” TRAVEL PERMITS FOR ABANDONMENT

Duringthe annual Office of the Citizenship and Immigration Services (CIS) OmbudsmanConference, USCIS Director, Francis Cissna, stated it is the USCIS’s intentionto end the practice of denying pending Advanced Parole applications (travelpermits) in situations where the applicant travels overseas while the travelpermit application is pending.

The USCIShas recently updated the “special instructions” section of their website regarding travel permits indicating individuals may travelwhen they have a pending travel permit application pending, provided they alsohave an approved travel permit that is valid for the entire time the individualis abroad. The pending travel permit will not be considered abandoned and sowill not be denied in this situation.

TheUSCIS website does not state that this change in policy applies to foreignnationals who travel abroad with a valid H or L visa. Non-immigrant intent is required formost visas, with a noted exception for those holding H-1B or L-1 status. Because of this exception, those traveling onH-1B or L-1 while their green cards are pending do not need a travel permit.

Travel permit applications are made most commonly when anindividual applies for a green card. Atthe time the green card application is filed, an application for a work andtravel permit is also filed. Unless thegreen card applicant holds H or L status, the green card applicant should nottravel abroad until the travel permit is issued. Traveling abroad without a valid travelpermit while a green card application is pending will cause the denial of thegreen card application for abandonment.

December 17, 2018
Uncategorized

JANUARY 2019 VISA BULLETIN

TheDepartment of State has just issued the January 2019 VisaBulletin. This is the fourth Visa Bulletin of Fiscal Year 2019. Thisblog post analyzes this month’s Visa Bulletin.

January2019 Visa Bulletin

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

EB Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01OCT17	15DEC16	01DEC16	01OCT17
EB-2	C	01AUG15	01APR09	C
EB-3	C	08JUN15	01MAR09	22JUN17

Table B: Dates for Filing — The DOS may work on applications with thesedates. But the Visa cannot be approved until the date is current perTable A.

EB Class	All Other	CHINA	INDIA	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01JAN16	01JAN10	01AUG17

MU LawAnalysis (all references are to Table A unless noted)

All Other,Mexico: As we expected, the EB-1 category again moved several months. We expect continued steady movement in thiscategory for All Other. We do not seeany retrogression in the future for EB2 or EB3, other than the usualretrogression at the end of the Fiscal Year.

China: Likewise,the China EB-1 category progressed several months. This category may not moveas fast as All Other in the next few Visa Bulletins. China EB-2 moved twomonths,

EB-3 didnot advance, reflecting high demand. Still, we expect EB-3 to slightly outpace EB-2 in the next few VisaBulletins.

India: IndiaEB-2 and EB-3 did not move. We expect the slow/no progress to be standard forEB-2 in the first part of FY 2019. Weare slightly more optimistic about India EB-3.

Philippines: The EB-3date again also only moved up by week, which is slower than we would have likedto have seen. While over the course ofFY2019, we should eventually see the EB-3 priority date extend into FY2018, wedo not expect too much movement in the next few Visa Bulletins.

December 5, 2018
Uncategorized

TWO PROPOSED H-1B CAP MODIFICATIONS

The USCIS has publishedtwo proposed rules that will change H-1B cap processes. While the USCIS hopes that these two rulesare finalized in time for the April 2019 H-1B cap, the USCIS has not yetcommitted to a timeline. The public maycomment on the two proposed rules until January 2, 2019.

The two rules are:

1. Electronic pre-registration for the H-1Bcap. This is a proposed rule that has beenconsidered by USCIS since 2011. Underthe proposal, all H-1B lottery petitions will need to be electronically pre-registeredduring the H-1B pre-registration period from April 1-7. After the pre-registration period hasconcluded, USCIS will run the H-1B lottery. All H-1B lottery winners will then have 60 days to submit the actualH-1B petition. If implemented properly,this should save petitioners and the industry significant expense.

2. H-1B Masters Cap Allocation Preference. USCIS will technically re-engineer the waythat it conducts the H-1B lottery. Theresult of the re-engineering should mean that a slightly greater number of H-1B petitionswill be approved for US Masters Degree H-1B Beneficiaries than under thecurrent H-1B lottery. We previously explained this process on an earlier blog.

November 27, 2018
Uncategorized

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

EffectiveMonday, November 19, 2018, the DOL released a new LCA(Form ETA-9035) which must be used on all immigration filings going forward. Acertified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status. The DOL generally certifies an LCAapproximately 7-10 days after submission of the LCA to the DOL.

Certifiedand date-valid LCAs in the old format can still be used in immigration filings,provided the LCAs have unused slots in the appropriate filing category, e.g.new employment, continuation of employment without change, etc.

Forall immigration filings, the new LCA requires the legal business name of theend-client(s) as well as the street address of the worksite(s) where theemployee will physically work.

ForH-1B masters cap petitions, the new LCA requires:

o Thename of the institution that awarded the employee’s master’s degree;

o Thefield of study in which the employee’s master’s degree was awarded;

o Thedate on which the employee’s master’s degree was awarded; and

o Documentationsubstantiating the employee’s master’s degree information.

MU’s employer checklists for H-1B, H-1B1, and E-3 filingshave been updated to request this information from employers at caseinitiation.

November 15, 2018
Uncategorized

DECEMBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS

The Department of State has just issued the December 2018 VisaBulletin. This is the third Visa Bulletin ofFiscal Year 2019. This blog post analyzes this month’s Visa Bulletin.

December 2018 Visa Bulletin

Table A: Final Action Dates — Applications withthese dates may be approved for their Green Card (Permanent Residency card) orImmigrant Visa appointment.

EB Class	All Other	CHINA	INDIA	PHIL’PNES
EB-1	01JUL17	01SEP16	01SEP16	01JUL17
EB-2	C	01JUL15	01APR09	C
EB-3	C	08JUN15	01MAR09	15JUN17

Table B: Dates for Filing — The DOS may work on applications with thesedates. But the Visa cannot be approved until the date is current perTable A.

EB Class	All Other	CHINA	INDIA	PHIL’PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01DEC15	01JAN10	01AUG17

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

All Other, Mexico: As we expected, the EB-1 categorymoved several months. We expectcontinued steady movement in this category for All Other.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as AllOther in the next few Visa Bulletins. China EB-2 moved two months, although EB-3 only advanced one week. We expect EB-3 to slightly outpace EB-2 inthe next few Visa Bulletins.

India: The Indian EB-3date moved two months, which was more than expected. There is a chance that EB-3 continues to moveat this pace for the next few Visa Bulletins. We expect the slow/no progress tobe standard for EB-2 in the first part of FY 2019.

Philippines: The EB-3 date again also only moved up by week, which isslower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3priority date extend into CY2018, we do not expect too much movement inthe next few Visa Bulletins.

Health Care Blog