Musillo Unkenholt Law | Healthcare Immigration Blog

June 18, 2018
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JULY 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the July 2018 Visa Bulletin. This is the tenth Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month’s Visa Bulletin.

July 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	C	01JAN12	01JAN12	C	C
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JAN13	01NOV08	C	01JAN17

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	01JAN12	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.

China (mainland-born): As often happens as we get closer to the end of the fiscal year, each categories moves with a higher variance than is usual. We expect that China EB-1 and EB-3 are essentially fully used, which means that there will be no numbers until after October 1, 2018. On the other hand, the China EB-2 number progressed about 6 months, reflecting than “downgrade” demand that has occurred in the last several years.

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-2 and EB-3 continued their steady progress. Rumors are flying around the internet about a massive progression of EB-3. We expect steady progressions for Indian EB-3, reflecting lower demand for these visas in 2008-09.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same. As with China EB-1 and EB-3, and India EB-1, this probably means no forward progression until October 1, 2018, when the new fiscal year begins. There is a minimal chance of a small progression in the next few months.

June 6, 2018
Uncategorized

DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?

Thank goodness the answer isNO. Green cards are still viable forroving employees and for staffing company employees.

Nevertheless, the rumor that theDOL has “cancelled” the long-standing Farmer Memo has been flying around theinternet. A cancellation of the FarmerMemo could be seen a massive strike against the viability of “roving employee”green cards, which make up the bulk of IT and healthcare staffing company’sgreen cards.

Thankfully, AILAhas confirmed that the rumor is false. The Farmer Memo is still good guidance for PERM green cards. The recent”cancellation” notification of the Farmer Memo that appeared on theDOL website is “simply an administrative system update that does notreflect any policy change.”

The Farmer Memo, which has existedsince 1994, provides the basis for green cards where the employer does not knowwhere the employee will actually work, as is the case for most staffingcompanies. The Farmer Memo instructsstaffing company petitioners to use the employer’s headquarters as the“worksite”. The Memo has been citedby the DOL countless times as good law, notably in Matter of Amsol.

Relevant section of the Farmer Memo

10.LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUSUNANTICIPATED SITES Applications involving job opportunities which require thebeneficiary to work in various locations throughout the U.S. that cannot beanticipated should be filed with the local Employment Service office havingjurisdiction over the area in which the employer’s main or headquarters officeis located.

InItem 7 (address where alien will work) of part A of the Application for AlienEmployment Certification, the employer should indicate that the alien will beworking at various unanticipated locations throughout the U.S. A shortstatement should also be included explaining why it is not possible to predictwhere the work sites will be at the time the application is filed.

No Impact on Schedule A cases

Even if the Farmer Memo had been cancelled,Schedule A cases would not have been impacted. Schedule A cases are green card petitions for Nurses and Physical Therapists. The DOL’s PERM FAQ website still containsthis FAQ (Notice of Filing FAQ #12), which allows roving employeesand provides guidance on how to prepare Schedule A green card petitions.

12. Where must I post a Notice of Filing for apermanent labor certification for roving employees?

If the employerknows where the Schedule A employee will be placed, the employer must post thenotice at that work-site(s) where the employee will perform the work andpublish the notice internally using in-house media–whether electronic orprint–in accordance with the normal internal procedures used by the employerto notify its employees of employment opportunities in the occupation inquestion. The prevailing wage indicated in the notice will be the wageapplicable to the area of intended employment where the worksite is located.

If the employer doesnot know where the Schedule A employee will be placed, the employer must postthe notice at that work-site(s) of all of its current clients, and publish thenotice of filing internally using electronic and print media according to thenormal internal procedures used by the employer to notify its employees ofemployment opportunities in the occupation in question. The prevailing wagewill be derived from the area of the staffing agencies’ headquarters.

If the work-site(s) isunknown and the staffing agency has no clients, the application would be deniedbased on the fact that this circumstance indicates no bona-fide job opportunityexists. The employer cannot establish an actual job opportunity under thiscircumstance. A denial is consistent with established policy in other foreignlabor certification programs where certification is not granted for jobs thatdo not exist at the time of application.

May 23, 2018
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DINNER AT AILA ANNUAL

For the last several years a groupof AILA lawyers who practice in healthcare have gotten together for a dinner onthe Thursday of AILA Annual week. Most years we have about 15 people. It is a great chance to catch up with oldfriends (and new ones!). It is a casual event.

If you are an AILA attorney who isinterested in attending this year’s dinner, please let me know how many willbe attending from your group. Thedeadline to register is June 1. Friends, spouses, etc. are also welcome.

May 17, 2018
Uncategorized

USCIS FINISHES H-1B LOTTERY

The H-1Blottery has been completed. USCIShas finished the data entry for all FY 2019 H-1B cap-subject petitions. Musillo Unkenholt continues to see H-1Bchecks being cashed and continues to receive H-1B receipt notices in ourmail. Therefore H-1B cap-subjectpetitioners should not lose hope yet if they have not received an H-1B receiptnotice. We expected that we willcontinue to see H-1B receipts for the next two weeks.

After the final H-1B receipt notices are sent byUSCIS, they will begin returning all H-1B cap-subject petitions that were notselected. In past years it has takenUSCIS 1-2 months to complete this process. Musillo Unkenholt does not expect the final H-1B returns until late Juneor early July.

May 16, 2018
Uncategorized

TWO MAJOR CHANGES FOR F-1 STUDENTS

USCIS has recently issued two updates that impact F-1 students.

Unlawful Presence

On May 11, 2018, the USCIS issued apolicymemorandum that changed the rules regarding unlawful presence for F-1students. Unlawful presence begins toaccrue once a foreign national has stayed beyond the end date on his/her I-94card. Because F-1 I-94 cards do not havean end date, but show D/S (duration of status) as the term of stay, unlawfulpresence did not apply to F-1s.

As of August 8, 2018, individualsin F, J, and M status who fail to maintain their status will start accruingunlawful presence on or after the date of one of the following events:

The day after DHS denies the student’srequest for an immigration benefit with a formal finding that the studentviolated status while adjudicating the benefit request;
The day after the student’s I-94expires;
The day after an immigration judgeor in certain cases, the Board of Immigration Appeals (BIA), orders the studentexcluded, deported, or removed;
The day after the student no longerpursues a course of study or authorized activity, or the day after the studentengages in unauthorized activity (e.g. unauthorized employment); or
The day after the student completeshis/her course of study or program, including any authorized CPT or OPT plusany authorized grace period.

Individuals who have accrued morethan 180 days of unlawful presence are generally subject to a 3 year bar ofre-entry to the US. Individuals whoaccrue more than 365 days of unlawful presence are generally subject to a 10year bar of re-entry to the US.

STEM OPT

In April 2018, USCIS updated itswebsite regarding STEMOPT extensions to indicate students are not permitted to engage in STEM OPTat third party worksite locations. Noformal policy memo or update was announced regarding this change.

The 2016 STEM OPT Rule requiresonly that the student be a bona fide employee of the employer signing the I-983training plan. The I-983 doesrequire that the student “receive on-site supervision and training” but doesnot specify if the employer must provide this supervision.

This issue has been raised with DHSand members of Congress through industry groups and the American ImmigrationLawyers Association and is currently under review.

May 12, 2018
Uncategorized

JUNE 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the June 2018 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month’s Visa Bulletin.

June 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	C	01JAN12	01JAN12	C	C
EB-2	C	01SEP14	26DEC08	C	C
EB-3	C	01JUN15	01MAY08	C	01JAN17

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	01FEB15	01APR09	C	C
EB-3	C	01JAN16	01SEP08	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.

China (mainland-born): As with all categories this month, the movements were nonexistent. It would not surprise MU if the Chinese numbers did not move for the remainder of the fiscal year. China EB-2 is a better bet to progress than EB-3, although it remains doubtful that EB-2 progresses ahead of EB-3.

India: There is a similar story with India as with China. No progress, outside of a minor 4 day movement in EB-3. We would not be surprised to see minor movements in these categories before the end of the fiscal year.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same, which is not surprising considering the enormous progressions of the last few years. The Phils EB-3 number will probably continue to only move negligible, reflecting the large numbers of Philippine RN EB-3 petitions that were filed in 2016-2018. There is a chance of a small progression in the next few VBs.

May 3, 2018
Uncategorized

H-1B EMPLOYERS SUE USCIS TO STOP HARASSING EMPLOYER-EMPLOYEE RFEs

On May 1 a significantlawsuit was filed in federal court in New Jersey. The Plaintiffs, three IT consultingcompanies, seek to overturn some of the most harassing parts of the USCIS’ policyagainst H-1Bs.

The legal issue is simple: USCIS isonly allowed to enforce laws that are passed by Congress. USCIS is not allowed to create laws. Thelawsuit alleges that the USCIS’ policy of seeking third-party contracts, vendorletters, itineraries, and endless details over employer-employee relationshipsare all outside USCIS’ authority.

Jon Wasden is the attorney whofiled the case. Jon worked at USCIS’sAdministrative Appeals Office and the Justice Department and has substantial experiencein these issues.

If your H-1B has been denied forthese reasons, please let me knowand I can put you in touch with Jon or you can visit his website.

April 30, 2018
Uncategorized

DHS DIR. CISSNA CONTINUES THE ASSAULT ON H-1Bs

Earlier this month, USCISDirector Francis Cissna, in aletter to Sen. Grassley (R-IA), described a number of forthcomingpolicies aimed at restricting the H-1B. Dir. Cissna’s policy changeshide behind fraud concerns. The real target is reducing legalimmigration.

The new restrictions that USCISplans to unilaterally impose include:

Rewrite the definition of“Specialty Occupation”. USCIS will rewrite the definition ofspecialty occupation. Under the current “bottom-up” approach, USemployers decide who comes to America. The agency’s “big government”rewrite will create more regulation, more USCIS officer discretion, and lessaccountability for USCIS officers. These policies are being producedbecause the administration thinks that it knows who are the “best andbrightest,” instead of the marketplace.

Denying spouses from Working In TheUnited States: USCIS’ long-rumoredplan to eliminate H-4 EADs was announced in the USCIS’ semiannualregulatory agenda.

Ratcheting up third-party worksiteH-1B denials. Despite no objective evidence that fraud exists inthird-party staffing situations, USCIS seeks to ask for additional evidencethat it does not ask for in first-party worksite assignments. This issueseems ripe for litigation. It seems inevitable that an H-1B employer willsuccessfully challenge the Service’s overreaching requests in this area.

April 20, 2018
Uncategorized

CHECKING IN ON THE VISA BULLETIN

The Department of State’s VisaBulletin guru, Charlie Oppenheim, hosts monthlymeetings with the American Immigration Lawyers Association. CharlieOppenheim is the Department of State’s Chief of the Control and ReportingDivision. He is the officer who is responsible for producing the Visa Bulletineach month.

This month’s Check In With Charliefeatured predictions about EB2 and EB3, which are the most popular categoriesfor readers of this Blog. Here are someof this month’s highlights:

Categoriesin which final action dates will remain the same include-

EB-1 China and India;

EB-2 India;

EB-3 China and Philippines;

EB-4 El Salvador, Guatemala andHonduras, and

EB-5 China.

Categories with modest advancements-

EB-2 China will move forward onemonth to September 1, 2014;

EB-3 India will advance threemonths to May 1, 2008;

EB-3 Other Workers China and India willadvance one and three months respectively, to May 1, 2007 and May 1, 2008; and

EB-4 Mexico will advance roughlyfive weeks to October 22, 2016.

It is likely that mostemployment-based final action dates will hold at their May dates for the monthof June with some changes possible in July. What occurs is entirely dependenton demand that may materialize, and continuing consultations with USCIS. Thewildcard this year that could cause unanticipated fluctuations in the finalaction dates is the pace of USCIS field office processing of I-485s.

April 13, 2018
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USCIS RECEIVES 190,000 H-1B CAP PETITIONS

USCIS announced that it received 190,098 petitionsduring the filing period, including petitions filed for the advanced degreeexemption (compared to the 199,000 H-1B petitions received during the FY2018 filing period).

USCIS is in the process of running the H-1B lottery and notifyingH-1B cap winners. Petitioners shouldexpect about 44% of their H-1B cap filings to be H-1B cap winners. Based on prior years, we will receive H-1Blottery winner receipts throughout April and May. After that we will receive the H-1B lotteryloser petitions. Traditionally if you donot receive a winner receipt notice by June 1, you have probably lost the H-1Blottery.

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