Musillo Unkenholt Law | Healthcare Immigration Blog

August 21, 2018
Uncategorized

USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD PARTY WORKSITES IS NOW PERMITTED

USCIS has updated its OptionalPractical Training Extension for STEM Students (STEM OPT) webpageindicating STEM OPT participants may engage in training experience at thirdparty worksites as long as the all of the training obligations are met. The employer must maintain a bona fideemployer/employee relationship with the student. Previously theUSCIS had said that STEM OPTs could not work at third-partylocations.

Any material changes in thestudent’s employment must be reported to the Designated School Official (DSO)within 5-10 business days. These changesinclude any modifications to the training listed on the I-983, a change in theemployer’s name or address, and termination of the student’s employment.

The USCIS’ backtracking was likelya result of alawsuit filed in federal court. That lawsuit, ITServeAlliance v. Nielsen, was filed by Attorney Jon Wasden. Jon, who is a friend of MU Law, previouslyworked for the USCIS’ AAO Office. He hasfiled several lawsuits on behalf of H-1B employees and H-1B employers. If you have an egregious denial decision andwould like to have Jon review your case, please contact him or contact MU andwe an put you in touch with him.

August 12, 2018
Uncategorized

DO NOT LET YOUR VISA SCREEN EXPIRE

TheUSCIS requires HealthcareWorker Certificates, sometimes called Visa Screens are required forforeign-born healthcare workers who will be employed in the US in the followingprofessions:

· Nurses (including LPNs, vocational nurses, andRNs);
· Physical Therapists;
· Occupational Therapists;
· Speech-Language Pathologists and Audiologists;
· Medical Technologists or Clinical LaboratoryScientists;
· Medical Technicians or Clinical LaboratoryTechnicians; and
· Physician Assistants.

A valid Visa Screen mustbe provided to the USCIS when the healthcare worker applies for entrance to theUS, change of status, extension of status, or adjustment of status (a greencard application). In light of theUSCIS’s new policies regarding the issuance of Requestsfor Evidence (RFE), Notice of Intent to Deny (NOID), and Noticesto Appear (NTA),healthcare workers are advised to not let their Visa Screens expire.

In the past, if an H-1Bextension was filed without a valid Visa Screen, the USCIS would generally sendan RFE to request it. Under the newUSCIS new policies, the lack of a valid Visa Screen would be grounds forimmediate denial. Further, with the newNTA policy, if the healthcare worker’s I-94 has expired at the time of thedenial, the worker could be put into deportation proceedings immediately.

MU strongly advises healthcareworkers to timely renew their Visa Screens so that they can continue tomaintain their immigration status and their ability to work in the US.

August 8, 2018
Uncategorized

SEPTEMBER 2018 VISA BULLETIN: DON’T PANIC! ALL WILL BE FIXED ON OCT 1

DON’T PANIC ABOUT THIS VISA BULLETIN!

Weinvite you to read our FAQ on August and September Visa Bulletins

The Department of State has justissued the September2018 Visa Bulletin. This is the final Visa Bulletin of FiscalYear 2018. This blog post analyzes this month’s Visa Bulletin.

September 2018 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.

EB Class	All Other	CHINA	INDIA	MEXICO	PHIL’PNES
EB-1	01JUN16	01JAN12	01JAN12	01JUN16	01JUN16
EB-2	01JAN13	01JAN13	01JAN07	01JAN13	01JAN13
EB-3	01NOV16	01JUL14	01JAN03	01NOV16	01NOV16

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

EB Class	All Other	CHINA	INDIA	MEXICO	PHIL’PNES
EB-1	C	C	C	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

MU Law Analysis (all references are to Table A unlessnoted)

This Visa Bulletin retrogressed all categories severalyears. This is the Department of State’s signal that all employment-basedvisas have been used for this fiscal year. This is normal and happen atthe end of each fiscal year. The new fiscal year starts on October 1,2018. This Visa Bulletin includes a note confirming that “theimplementation of the above mentioned dates will only be temporary and inOctober, the first month of fiscal year 2019, the final action dates will bereturned to those established for August.”

Accordingly, things will return to normal on October 1,2018.

August 7, 2018
Uncategorized

USCIS CREATES NEW NTA POLICY

On June 28, 2018 the USCIS issued amemoregarding Notices to Appear (NTA) in a wider range of cases. On July 30, 2018, the USCIS indicated thismemo’s implementation would be delayeduntil further guidance regarding its administration can be issued.

Under the new memo, USCIS Officersare now mandated to issue (NTAs for cases where the individual is removable becausethere is evidence of fraud, criminal activity, or where an applicant is deniedan immigration benefit and is unlawfully present in the US. An NTA initiatesdeportation proceedings and instructs the foreign national to appear before anImmigration Judge. Even if issuance ofthe NTA is erroneous, there is a five year ban to re-entering the US if theforeign national departs the US while deportation proceedings are on-going. NTAs will be sent to the employee’s last knownaddress and not to the H-1B attorney.

Unlawful presence accrues if theprevious I-94 card has expired from the date of denial of the new immigration petitionforward. For example, an H-1B worker isconsidered unlawfully present when the request for an H-1B extension is deniedand the prior H-1B has already expired.

o 180 days to 364 days of unlawful presenceresults in 3 year bar of return to US

o 365 days+ results in 10 year bar of return tothe US

This would most commonly apply tocases where the foreign national’s I-94 has already expired and their extensioncase denied. For example: the employee’sI-94 expires on May 1; extension filed February 1, but is pending for 9 monthsuntil November. In November the H-1Bextension is denied. The employee nowhas an expired I-94 card and is deportable.

Appealing the H-1B denial isgenerally not advised as the Appeals Office has a 90%+ rate of upholding theUSCIS denials and a pending appeal does not stop accrual of unlawfulpresence or protect the worker from deportation.

MU recommends the following inlight of this new policy:

o File extension petitions as early as possible

o Use premium processing service to ensure a quickdecision

o Employees who are porting from one H-1B employerto the next may want to wait until the new H-1B case is approved to resign andbegin work with the new employer

o F-1 to H-1B applicants should maintain theirunderlying OPT, including STEM OPT, until H-1B approval

o Those applying for green card through adjustmentof status (AOS) should maintain their underlying status until AOS is approved

o Foreign nationals should keep their addressup-to-date with USCIS, even when leaving the US

Finally, this policy is expectedtake the focus of USCIS from adjudicating petitions and to create lengthierdelays. MU will alert clients once thememo has been implemented.

August 2, 2018
Uncategorized

USCIS ISSUES NEW MEMO ON RFE AND NOID ISSUANCE

On July 13, 2018 the USCISissued a memoindicates USCIS adjudicators now have full discretion to deny applications,petitions, and requests without first issuing an Request for Evidence (RFE) orNotice of Intent to Deny (NOID), when appropriate.

Applicants must include allrequired initial evidence, as listed in operating procedures, forminstructions, or regulations with their immigration petition orapplication. In some cases a second RFEor NOID may be issued. Reutersreports RFE and NOID issuance is up significantly in the last year.

Apart from RFEs, Officers havethe discretion to validate assertions or corroborate evidence and information submittedwith an immigration application by consulting USCIS or other governmentalfiles, systems, and databases, or by obtaining publically available informationthat is readily accessible.

It is unclear how strictly this newpolicy will be enforced. MU recommends employers work to get all documentationfor a case, including end-client documentation, upfront in the initial filingand advises employers to file extension cases as early as possible. MU encourages employers to closely review alltemplate language in support letters and immigration forms as well as on theemployer’s website and other publicly available information about the employer.

July 30, 2018
Uncategorized

USCIS NTA MEMORANDUM IMPLEMENTATION DELAYED

On July 30, the USCISannounced that it will delay the implementation of a recent memoregarding the issuance of Notices To Appear (NTAs) to foreign national who fallout of status when their immigration petition is denied. The issuance of an NTA initiates deportationproceedings.

On June 28, 2018 the USCIS issued a newpolicy memorandum which instructed USCIS Officers to initiatedeportation proceedings for those foreign nationals’ whose immigration petitionwas denied after their I-94 card had already expired. Generally, when the USCIS creates a newpolicy the USCIS delays implementation of the policy until a guidance memo canbe issued. The June 28, 2018 memo didnot give a date specific on which the policy would be implemented, meaning it wouldbe implemented immediately.

Today’s announcement indicates the newNTA policy not be implemented until the USCIS guidance is issued. The announcement also confirms that USCIS is not currentlyinitiating deportation proceedings for those whose immigration petitions aredenied after their I-94 cards expire.

For more information on this new policy please join us onWednesday, August 1, for a teleconference on this new policy and other updatesfrom the USCIS: REGISTER

July 24, 2018
Uncategorized

MU TELECONFERENCE: USCIS NEW POLICIES UPDATE

The USCIS has recentlyissued new policies regarding Notices to Appear (NTAs), Requests for Evidence(RFEs) and Notices of Intent to Deny (NOIDs).
______________________________________

Please join MU Law for a teleconference regarding these topics of newpolicy.

The agenda for the call is as follows:

Under this new guidance, when will the USCIS issue an NTA and initiate deportation proceedings?
When are foreign nationals “unlawfully present” in the US and what are the consequences?
What if I do not receive the NTA or leave the US once my immigration application is denied?
When will the USCIS issue an RFE? A NOID? A denial?
What initial evidence is required for an immigration application?
Can a second RFE or NOID be issued?

______________________________________

This teleconference is free for MU Law clients and friends of thefirm. We look forward to speaking with you!

July 13, 2018
Uncategorized

AUGUST 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the August 2018 Visa Bulletin. This is the eleventh Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month’s Visa Bulletin. The August and September Visa Bulletins always are a little unusual. We invite you to read our FAQ on these Visa Bulletin.

August 2018 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.

EB Class	All Other	CHINA	INDIA	MEXICO	PHIL’PNES
EB-1	01MAY16	01JAN12	01JAN12	01MAY16	01MAY16
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JUL14	01JAN09	C	01JUN17

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

EB Class	All Other	CHINA	INDIA	MEXICO	PHIL’PNES
EB-1	C	C	C	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

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

All Other: The EB-2 has been current for many years. The EB-3 is also current and is expected to remain current for the foreseeable future. The EB-1 retrogression is temporary and is because of the reasons listed on the above-linked FAQ.

China (mainland-born): China EB-3 (Chart A) moved favorably by 18 months. This move was done to spur filings in this category before the end of the fiscal year.

India: As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018. EB-3 continued its steady progress, improving by to months. India EB-3 should continue to steady progress into FY 2019.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 improved by 6 months, which is terrific, but probably temporary. The DOS is trying to encourage filings in this category before the end of the fiscal year. The EB-1 retrogression is of no consequence, and is simply reflective of the fact that all countries’ EB-1 demand was higher than expected in FY2018. It will be Current in October 2018.

June 30, 2018
Uncategorized

TELECONFERENCE: STEM OPT AND THIRD-PARTY WORK-SITES

The USCIS has recentlyissued two new interpretations on the issue of STEM OPTs working at third-partyclient work-sites. These interpretations have dramatic implications forthose who continue to work at third-party client sites after August 9, 2018.
______________________________________

Please join MU Law for a teleconference on this issue. The teleconference will be July 11, 2018 at 3PM ET.

Topics on the call will include:

STEM OPT v. non-STEM OPT
Examination of the current rules and the new rules.
USCIS interpretation of a third-party client site.
Unlawful presence v. Failure to Maintain Status

The teleconference isfree for MU Law clients and friends of the firm. We look forward to speakingwith you!

June 25, 2018
Uncategorized

CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?

Because of two recent USCISinterpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPTworkers do not work at third-party worksites under their SETM OPT workauthorization until the USCIS issues better and clearer guidance on theissue.

Working and training at third-partyworksites is probably legal. However, byworking at the third-party worksite the STEM OPT trainee puts himself at risk forenormous negative immigration consequences, including a ten-year bar fromentering or living in the United States.

USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION

Earlier this year, and without anywarning or notice, the USCISchanged its webpage to include this key change:

thetraining experience may not take place at the place of business or worksite ofthe employer’s clients or customers because ICE would lack authority to visitsuch sites.

The USCIS’ justification for thethird-party worksite prohibition is, apparently, because ICE (ImmigrationCustoms Enforcement) would lack the authority to investigate at the third-partyworksite.

Curiously, ICE has not produced anyguidance on this point. ICE likely wouldbe surprised to learn that they do not have the authority to investigate aworksite where it believed immigration fraud was being committed.

The website change alone isprobably not good law. There has been noregulatory change. There has been nonotice and comment period, something required for regulatory change. The “ICE lacks investigative authority”justification for the prohibition against third-party worksites is weak.

If the only thing that USCIS haddone was updated their webpage, then MU Law’s position might be that STEMworkers could continue to work at third-party worksites, provided that theother qualifications of the program were being met, however, this is not theonly change for F-1 students.

F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAINSTATUS

A brand new USCIS policy, effectiveAugust 9, 2018, says that F-1students including STEM OPTs will now accrue “unlawful presence”“the day after he or she engages in an unauthorized activity.” Accordingly, after August 9, 2018, the USCISis expected to find that STEM OPTs working at third-party worksites areengaging in “unauthorized activity” and are therefore “unlawfully present”.

Even worse, a USCIS official can retroactivelyfind that an F-1 student engaged in “unauthorized activity”. A number of leadinguniversity administrators have made this point directly to USCISDirector James Cissna.

This is a massive change inlong-standing USCIS policy. Under theprior interpretation, an F-1 student or OPT did not accrue unlawful presenceuntil an immigration judge said so. Engaging in “unauthorized activity” meant thatan F-1 worker “failed to maintain status,” which is a lesser finding.

The distinction between “failing tomaintain status” and “unlawful presence” is enormous:

When someone fails to “maintainstatus” they must immediately leave the US but can ordinarily immediatelyreenter the US.
When someone is “unlawfullypresent” for more than 180 days, they must immediately leave the US and are barredfrom reentering the US for 3 years. When someone is “unlawfully present” for more than 365 days, they mustimmediately leave the US and are barred from reentering the US for 10 years.

Consider this hypotheticalscenario:

August 9, 2018 – STEM OPT continuesto work at a third-party worksite

April 1, 2019 – STEM OPT workerfiles an H-1B cap petition

May 1, 2019 – STEM OPT worker’sH-1B cap cases is selected in the H-1B lottery

August 10, 2019 – STEM OPT workerreceives an RFE from USCIS asking for proof that he has only engaged inauthorized activity.

September 20, 2019 – H-1B is denied. USCIS finds that STEM OPT worker’sthird-party work was “unauthorized activity”. USCIS also finds that the STEM OPT worker was “unlawfully present” fromAugust 9, 2018 until September 20, 2019, a period of more than 365 days. Consequently, the STEM OPT worker mustimmediately leave the US and cannot reenter the US for 10 years.

CONCLUSION

At this time, MU Law recommendsthat STEM OPT workers are not placed at third party worksites unless comprehensiveanalysis is done regarding the viability of the assignment. STEM OPT workers at third party worksites runthe risk of 3 and 10 year bars from reentry into the US. It is our hope that USCIS provides greatlyclarity on these points and engages the public on the issue, rather thancreating law by fiat.

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