MARIA SCHNEIDER BECOMES AN MU PARTNER
February 4, 2019
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.
REMINDER: H-1B CAP STRATEGY TELECONFERENCE
February 1, 2019
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.
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
USCIS TO IMPLEMENT H-1B CAP RULE CHANGING MASTER’S CAP IN APRIL 2019 AND ADDING PRE-REGISTRATION REQUIREMENT IN APRIL 2020
January 31, 2019
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.
H-1B CAP STRATEGY TELECONFERENCE
January 29, 2019
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.
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
USCIS WILL RESUME PREMIUM PROCESSING ON H-1B CAP CASES FILED IN APRIL 2018
January 28, 2019
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.
PHILIPPINES REMOVED FROM H-2 VISA LIST
January 22, 2019
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.
FEBRUARY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS
January 14, 2019
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
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.
H-1B COMMENT PERIOD CLOSED
January 8, 2019
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.
DENIAL OF “ADVANCED PAROLE” TRAVEL PERMITS FOR ABANDONMENT
December 21, 2018
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.