WEBINAR: USCIS NEW POLICY MEMORANDUMS
October 4, 2018
Over the last six months, the USCIS has issued several new policy memorandums. Join us for a webinar recapping these new memos and recent trends in adjudications. The webinar will cover:
- Denial Notices issued without an RFE/NOID
- Notice to Appear (NTA) issuance
- OPT/F-1 updates (including unlawful presence and 3rd party work-sites on OPT)
- H-1B 3rd party work-site and itinerary memo
- Rescission of deference to previous approvals
This webinar is for MU Law clients and friends of the firm.
We look forward to speaking with you!
LAWSUIT ALLEGING HUMAN TRAFFICKING OF H-1B NURSES ALLOWED TO PROCEED AS A CLASS ACTION
September 25, 2018
As reported in the New York Law Journal, A FederalJudge will allow a group of Filipino H-1B nurses to continue theirlawsuit against Sentosa Care as a “certified class.” At issue was whether the nurses had to pursuetheir claims individually or whether they could proceed in one class actionlawsuit. By allowing the case tocontinue as a class, the lawsuit could lead to greater damage awards againstSentosa Care since it is generally easier for plaintiffs to pursue litigationtogether. The plaintiff’s lawyer saysthat 200 H-1B nurses could now bring their claims.
The judgelaid out the case in her decision. The substantive issue is whether Sentosa’s pursuit of a damage clause inthe employment contractual clause rises to the standard of violating theTrafficking Victims Protection Act. Theemployment agreement entitled Sentosa to $25,000 in liquidated damages if thenurses left Sentosa’s employment prior to fulfilling the three-yearcontract.
The nurses allege two claims:
- Because the nurses were not paidthe contractual wage from the time that they began working, the employmentagreements were breached. Therefore,Sentosa’s pursuit of the $25,000 violates several provisions of the TVPA.
- Even if the agreements were notbreached, the $25,000 itself is so far above Sentosa’s actual damages thatpursuit of the $25,000 violates several provisions of the TVPA. The judge notes that there is some evidencethat Sentosa only spent a few thousand dollars per nurse.
OCTOBER 2018 VISA BULLETIN: TRENDS AND PREDICTIONS
September 17, 2018
The Department of State has just issued the October 2018 Visa Bulletin. This is the first Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.
The USCIS is allowing Adjustment of Status filings based off of Table B, Dates of Filing. If you are physically in the US, you can file your I-485 on October 1, if your priority date is earlier than the date in Table B.
The USCIS is allowing Adjustment of Status filings based off of Table B, Dates of Filing. If you are physically in the US, you can file your I-485 on October 1, if your priority date is earlier than the date in Table B.
October 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 | 01APR17 | 01JUN16 | 01JUN16 | 01APR17 | 01APR17 |
EB-2 | C | 01APR15 | 26MAR09 | C | C |
EB-3 | C | 01JUN15 | 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 | 01JUN18 | 01OCT17 | 01OCT17 | 01JUN18 | 01JUN18 |
EB-2 | C | 15JUN15 | 22MAY09 | C | C |
EB-3 | C | 08AUG15 | 01OCT09 | C | 01JUL17 |
MU Law Analysis (all references are to Table A unless noted)
All Other, Mexico: EB2 and EB3 returned to current, as we expected. They should stay current for most/all of FY2019.
China: The EB2 and EB3 dates moved into CY2015. Our sense is that these dates will stay in 2015, slowly improving over this Fiscal Year.
India: These dates moved back into 2009, again as expected. We expect to steady progress in both categories in FY2019.
Philippines: The fact that the EB-3 Final Action date stayed in 2017 is a terrific sign, indicating that there may be fewer immigrant visas in the pipeline than we had expected. Over the course of FY2019, we should eventually see the EB-3 priority date extend into CY2018, both in Tables A and B.
CHANGES FOR F-1 STUDENTS – ACCRUAL OF UNLAWFUL PRESENCE
September 6, 2018
On May 11, 2018, the USCIS issueda policymemorandum that changed the rules regarding unlawful presencefor F-1 students. Unlawful presencebegins to accrue once a foreign national has stayed beyond the end date onhis/her I-94 card. Because F-1 I-94cards do not have an end date, but show D/S (duration of status) as the term ofstay, unlawful presence previously did not apply to F-1s.
As of August 9, 2018, individuals in F, J,and M status who fail to maintain their status will start accruing unlawfulpresence 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 more than 180days of unlawful presence are generally subject to a 3 year bar of re-entry tothe US. Individuals who accrue more than365 days of unlawful presence are generally subject to a 10 year bar ofre-entry to the US.
Things to keep in mind with regard to thisnew rule:
- This new rule went into effect onAugust 9, 2018. Unlawful presence willaccrue from August 9, 2018 or the date the student engages in unlawful activityforward. No formal notice will be givento the student as to when unlawful presence begins to accrue. If a student believes he or she may haveengaged in unlawful activity, the student should contact their DSO or animmigration attorney immediately for advice.
- The timely filing of an applicationfor reinstatement stops the accrual of unlawful presence, and, if theapplication for reinstatement is approved, cures any unlawful presence in thestudent’s record. Applications forreinstatement must be filed within 5 months of the date the student firstengaged in unlawful activity.
- There is no accrual of unlawfulpresence during the cap-gap period or when a change of status from F, M, or Jto another status has been filed, unless the change of status request is denied. Unlawful presence will begin to accrue fromthe date of the denial of the change of status going forward. If the change of status is approved, theUSCIS will not reopen the previous F, M, or J. For example, if an F-1 student engaged in unlawful activity in 2016while on F-1 status but has now changed status to H-1B, the USCIS will notreexamine the 2016 F-1.
USCIS WILL NO LONGER ACCEPT PPS FOR H-1Bs EXCEPT EXTENSIONS, CAP EXEMPT INSTITUTIONS
August 29, 2018
In an unexpected move (although all-too-commonfor an increasingly erratic agency), the USCIS will no longer accept Premium ProcessingService (PPS) for all H-1Bs, except for H-1B extensions with the same employeror H-1Bs for cap-exempt institutions, such as Universities or research organizations.
Effective September 11, 2018, PPSwill not be available for H-1B cap petitions and H-1B amendments. The ban on PPS will continue until February19, 2019.
The justification for the ban onPPS is to reduce overall H-1B processing times.
If you are asking yourself how eliminating a fee-based premiumprocessing service will reduce processing times, you are not alone. The PPS is supposed to pay for itself. This is yet another example of an agency thatcannot get out of its own way.
USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD PARTY WORKSITES IS NOW PERMITTED
August 21, 2018
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.
DO NOT LET YOUR VISA SCREEN EXPIRE
August 12, 2018
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.
SEPTEMBER 2018 VISA BULLETIN: DON’T PANIC! ALL WILL BE FIXED ON OCT 1
August 8, 2018
DON'T PANIC ABOUT THIS VISA BULLETIN!
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.
USCIS CREATES NEW NTA POLICY
August 7, 2018
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.