Musillo Unkenholt Law | Healthcare Immigration Blog

June 9, 2017
Uncategorized

JULY 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2017 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month’s Visa Bulletin.

July 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

EB Class	All Other	CHINA	INDIA	MEXICO	PHIL’PNES
EB-1	C	01JAN12	01JAN12	C	C
EB-2	C	22MAR13	22JUL08	C	C
EB-3	08JUN17	01JAN12	15FEB06	08JUN17	15MAY14

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues to be effectively current.

China (mainland-born): The DOS instituted a retrogression for China EB-1 with the June Visa Bulletin. The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017.

The China EB-2 date again moved up, but only a few weeks. The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date retrogressed. It is now slower than China EB-2. This was predicted last month.

India: As with China, India EB-1 now is retrogressed. It is expected that this EB-1 retrogression will last until October 2017.

EB-2 India moved up about two weeks. EB-3 India jumped into 2006, which is a pleasant surprise. It is not what we expected. The DOS is clearly trying to ensure that all visa numbers are used in FY2016.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead one full year! The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, 2013, and half of 2014 EB-3 visas in about 7 months. This is even more positive than we expected. (Our note from September 2016: “This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.”).

Our internal metrics see the Philippine EB-3 number continuing to progress at a rapid clip for the rest of 2017.

June 8, 2017
Uncategorized

DOL ANNOUNCES HEIGHTENED ENFORCEMENT

On June 6, 2017 US Secretary of Labor,Alexander Acosta, announced new Department of Labor (DOL) actions to enforcework visa programs. This announcementwas made in support of President Trump’s Executive Orderon Buy American and Hire American.

The Secretary’s actions areoutlined in a newsrelease issued by the DOL. Secretary Acosta has determined it is the policyof the DOL to vigorously and actively enforce laws governing visaprograms. The DOL actions forenforcement include:

The DOL Wage and Hour Division will conduct more civilinvestigations and site visits.
The DOL Employment and Training Administration willdevelop and propose changes to the LCA (Labor Condition Application) as well asother forms to better identify violations and fraud. Among other things,the DOL will be looking at how to better monitor LCA filings for violations andprevent fraud with regard to the:

exemptions for H-1B dependent employers where the employeehas a master’s degree or greater or makes $60,000/year or more;
the rate of pay listed on the LCA; and
the worksite location(s) listed on the LCA.

The DOL will actively coordinatewith and refer cases to the Inspector General and Attorney General in cases of criminal fraud,which is outside the DOL’s jurisdiction.
There will be additional trainingof DOL Officers to detect civil and criminal fraud.
The DOL will continue to work withthe US Department of Justice and US Department of Homeland Security toinvestigate, detect, and prevent fraud in all visa programs.

The DOL Office of the InspectorGeneral has posted some recent cases on its website.

June 2, 2017
Uncategorized

DINNER AT AILA

Are you an immigration attorney whois going to the AILA Annual Conference in New Orleans? If so, andif you do not have plans on Thursday evening, please join us fordinner.

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 15-20 peopleattend. Every year a few new people join the group.

It is a great chance to catch upwith old friends (and new ones!). It is a casual event. If you are an AILAattorney who is interested in attending this year’s dinner, please let me know howmany will be attending from your group by June 16. Friends, spouses, etc. arealso welcome.

May 30, 2017
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USCIS DENYING GREEN CARDS TO OVERQUALIFIED BSN NURSES

MU Law is aware that the USCIS hasbeen denying/issuing RFE/NOIDs on I-140s when nurses hold a BSN. The USCIS somehow has been finding that BSNnurses are not qualified for nursing positions that require an Associate’sdegree in nursing (ASN). USCIS claimsthat the I-140 should be denied because the BSN does not meet the exactrequirements on the ETA Form 9089.

This is ridiculous decision-makingby USCIS. The BSN is, of course, ahigher degree than an Associate’s degree. BSN nurses are more than qualified for these positions. The law is clearthat any I-140 beneficiary can have additional skills, experience, or educationbeyond the requirements stated in the ETA Form 9089 and still meet the minimumrequirements of the position.

MU Law and others have reached outto USCIS through AILA, suggesting that this is a training issue at USCIS . As per a recentAILA update, USCIS is looking into this issue. We hope to have a positive update soon.

May 24, 2017
Uncategorized

CHECKING IN ON THE VISA BULLETIN

The Department of State’s VisaBulletin guru, Charlie Oppenheim, hosts monthlymeetings with the American Immigration Lawyers Association. Charlie Oppenheim is the Department of State’sChief of the Control and Reporting Division. He is the officer who isresponsible for producing the Visa Bulletin each 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:

EB-3 Worldwide. Charlieexpects EB-3 Worldwide to continue to be “effectively current” for theforeseeable future.

EB-3 India. Charlie predicts that the July final action date forEB-3 India will advance to October 15, 2005, which he reiterated at a May 18,2017 meeting with AILA in Washington, D.C.

EB-2 India. Previously, Charlie believed that this category willrecover to FY2017’s final action date. Unfortunately, he no longer believes this tobe the case. This category mayretrogress or exhaust in August, until October 1, 2017.

EB-3 Philippines. Charliedid not comment on EB-3 Philippines, but MU Law’s internal tracking indicatesthat this category will continue to progress at the same rate as the last fewmonths.

May 23, 2017
Uncategorized

H-1B CAP UPDATE

On May 3, 2017, the USCIS announcedthat it completedthe data entry for the 2017 (FY 2018) H-1B cap season. MU Law believes that it has received all ofthe H-1B receipts that it will receive this year. Our in-house receipt numbers mirror the overall42% receipt number.

H-1BCap Approval Notices and RFEs. Lastweek, Musillo Unkenholt received its first 2017 H-1B cap approval notices. We have also received our first 2017 H-1B capRequests for Evidence. It is unclear howlong it will take the USCIS to issue approvals and RFEs for the H-1B capcases.

H-1BReturned Petitions. MusilloUnkenholt has not yet received any returned H-1B cap-subject petitions fromUSCIS. Last year, we continued toreceive unselected petitions into August. Our hope is that the USCIS will be faster in light of the 20% decline inH-1B cap petition filings.

H-1BPremium Processing. What is alsounknown is the state of the Premium Processing Service (PPS) for H-1Bpetitions. In March the USCIS revealedthat it would be suspendingPPS for all H-1B petitions, including cap-subject, amendments, andextensions, for as long as 6 months. A 6-monthsuspension of H-1B PPS means that H-1B PPS could be suspended until October 1,2017. USCIS has made no announcement asto whether it will shorten the H-1B PPS suspension since so few H-1B cappetitions were filed.

May 10, 2017
Uncategorized

JUNE 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2017 Visa Bulletin. This is the eight Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month’s Visa Bulletin.

June 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	01JAN12	01JAN12	C	C
2nd	C	01MAR13	01JUL08	C	C
3rd	15APR17	01OCT14	15MAY05	15MAR17	01MAY13

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues, moving an additional one month. Consular processed EB-3 are effectively current.

China: The DOS has instituted a retrogression for China EB-1. The continued high level of demand for EB-1 numbers forUSCIS adjustment of status applicants has required the establishment of a datefor June. It is expected that this EB-1 retrogression will last until October 2017.

The China EB-2 date again moved up, but only a few weeks. The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date is being held for the month of June. Continued heavy demand fornumbers will require a retrogression of China EB-3 no later than August.

India: As with China, India EB-1 now is retrogressed. It is expected that this EB-1 retrogression will last until October 2017.

EB-2 India moved up about two weeks. EB-3 India actually moved up almost two months. It is our expectation that these two categories will move very slowly in the foreseeable future.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by yet another four more months. The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, and half of 2013 EB-3 visas in about 6 months. This is even more positive than we expected. (Our note from September 2016: “This is consistent with internal MU Law analysis whichsees this category progressing into 2013 by the Summer of 2017.”).

May 3, 2017
Uncategorized

USCIS COMPLETES DATA ENTRY OF H-1B CAP PETITIONS

USCIShas just announced that it has completed data entry of all fiscal year 2018H-1B cap-subject petitions selected in their computer-generated random process. It may take a week or so for all of theH-1B cap receipts to be delivered. If aBeneficiary has not received an H-1B receipt notice in the next week or so, itstands to reason that they have not “won” the H-1B lottery.

Shortly, USCIS will begin returningall H-1B cap-subject petitions that were not selected. USCIS is unable to provide a definite timeframe for returning these petitions. USCISwill issue an announcement once all of the unselected petitions have beenreturned.

In order to balance thedistribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B capsubject petitions from the Vermont Service Center to the California ServiceCenter.

May 2, 2017
Uncategorized

PT INTERSTATE LICENSURE COMPACT MAY GO LIVE IN 2018

First reported by PT In Motion, The Stateof Washington became the tenth state to join the InterstateLicensure Compact for Physical Therapy (PTLC). The tenth state is key because that is thethreshold for the Compact to become effective.

Once fully live, the PTLC will allow PTs in one compact state topractice in another compact state without having to obtain another state PT license.

The ten states are: Washington, Arizona,Kentucky, Mississippi, Missouri, Montana, North Dakota, Oregon, Tennessee, andUtah.

Before the PTTC can go fully live,a Commission must be developed. TheCommission will establish the rules governing interstate practice. It is expected that it will take about oneyear for the Commission to be established and the final rules promulgated.

APTA is optimistic that more stateswill want to join the PTLC now that the ten state threshold has beenreached. States that are interested inthe PTLC should contact the APTA stateaffairs staff.

April 26, 2017
Uncategorized

COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

One interesting legal question is whetherthe Trump administration could change the way that H-1B cap-subject petitionsare allocated. Under the current system,if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cappetitions that are filed during the first week of April.

There is no Congressional authorityfor the H-1B lottery. Onefederal court has said that USCIS’ implementation of an H-1B lottery isreasonable because Congress did not instruct the USCIS what to do if the H-1Bcap when oversubscribed. This case, Walker Macy v. USCIS, was just decidedearlier this spring and is now on appeal.

The Trumpadministration says that it seeks reform to “help ensure that H-1B visasare awarded to the most-skilled or highest-paid petition beneficiaries.” Could the Trump administration attempt H-1Breform by replacing the H-1B lottery with an H-1B prioritization system basedon the “most-skilled or highest-paid petition beneficiaries?”

My read is that it cannot. As noted in the Walker Macy case, “when Congress is silent about a particular agency(or judicial) interpretation for a long period of time after thatinterpretation while repeated amendments have been passed, this demonstrateslegislative acquiescence to the interpretation.” In other words, the fact that the USCIS haslong been using an H-1B lottery is compelling.

The random process of the H-1Blottery is also fundamentally fair since it treats all timely -filed H-1Bpetitions identically. Surprising tosome, Congress has not spoken on the need to prioritize the “most-skilled or highest-paidpetition beneficiaries”. In fact,Congress has set forth a different standard.

An H-1B is appropriate if a USemployer is paying at least the prevailing wage of the occupationalclassification. There is nothing in theCongressional statute that favors employers who pay a greater wage. Therefore, it is dubious whether the Trumpadministration can implement this change to the H-1B lottery withoutCongressional action.

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