Musillo Unkenholt Law | Healthcare Immigration Blog

March 15, 2017
Uncategorized

H-1B CAP: PAST AND FUTURE DEMAND

This year’s H-1B filing date ofApril 1, 2017 is coming fast. MU Lawpredicts that H-1B petitioners certainly will file in excess of 200,000petitions during the H-1B cap window of April 1-7, 2017. Last year’s record filing total of 240,000may even be exceeded, although we have had reports of reduced demand this year.

When the USCIS receives more H-1Bpetitions than slots available it holds an “H-1B lottery”. Last year, the USCIS held an H-1B lotterybecause it received over three times as many H-1B petitions as slots available.

If you are considering filing anH-1B cap-subject petition, MU Law urges you to begin that process now.

The H-1B is usually associated withIT positons. Most of the H-1B slots are usedby IT professionals. Many healthcareprofessions also qualify for H-1B status, including Physical Therapists,Occupational Therapists, Speech Language Therapists, and some RegisteredNursing positions.

International workers who areworking in the U.S. on an H-1B visa with another cap-subject employer are notsubject to H-1B cap. These cases are commonly referred to as “H-1B transfer”cases and may be filed at any time throughout the year.

Employees that need a”cap-subject” H-1B include:

* International students working onan EAD card under an OPT or CPT program after having attended a U.S. school

* International employees workingon a TN may need an H-1B filed for them in order for them to pursue a permanentresidency (green card) case

* Prospective internationalemployees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exemptorganization

* Prospective internationalemployees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016
H-1B 2017 (FY 2018)	85,000	April 1, 2017

March 10, 2017
Uncategorized

APRIL 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

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

April 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	C	C	C	C
2nd	C	15JAN13	22JUN08	C	C
3rd	15FEB17	15AUG14	24MAR05	15FEB17	15SEP12

MU Law Analysis

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

China: The China EB-2 date again moved up one month. The China EB-3 again date progressed nearly six months, just as it did in the March 217 Visa Bulletin. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers “upgrading” their applications to EB-2.

India: EB-2 India moved up about 3 weeks, while EB-3 India stayed essentially the same, unfortunately.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly six more months. The Philippine EB-3 number essentially cleaned out most of the 2010, 2011, and 2012 EB-3 visas in less than 6 months. This is what we have 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.”).

March 8, 2017
Uncategorized

PRESIDENT TRUMP’S NEW EXECUTIVE ORDERS

On Monday, March 6, 2017, PresidentTrump issued an Executive Order titled “Protectingthe Nation from Foreign Terrorist Entry into the United States.” This Executive Order will go into effect onThursday, March 16, 2017. Among otherprovisions, the Executive Order states individuals from six designatedcountries who are outside the United States and do not currently have a validvisa are not eligible to travel to the United States for 90 days.

Iran
Libya
Somalia
Sudan
Syria
Yemen

Please note that Iraq has beenremoved from the list of countries effected by this Executive Order. ThisExecutive Order does not apply to:

lawful permanent residents (greencard holders)
dual nationals who travel to the USon a passport issued by the non-designated country
individuals who hold a valid visa on theeffective date of the Order. No visaswill be revoked.
foreign nationals traveling ondiplomatic visas
individuals granted asylum orrefugee status in the US before the effective date of the order

The US Department of HomelandSecurity and US Department of State have discretionary authority to issue visason a case-by-case basis to nationals of the six named countries when denial ofentry would cause undue hardship.

Nationals from countries not namedabove can travel abroad but should expect additional delays and scrutiny at theairport when re-entering. Please note that the situation is fluid and maychange at any time. If you have any questions, please contact our office.

March 4, 2017
Uncategorized

USCIS SUSPENDING H-1 PREMIUM PROCESSING, STARTING APRIL 3

USCIS will no longer accept Premium ProcessingService (PPS) filings for any H-1B petition, starting April 3, 2017. USCIS says that the suspension could last for6 months. PPS will not be available forH-1B cap cases, H-1B cap-exempt cases, H-1B extensions, H-1B amendments, or anyother type of H-1B petition.

USCIS claims that by suspending thePPS program for H-1B petitions, it will helpthem reduce overall H-1B processing times.

Here is the fullpress release:

USCIS Will Temporarily Suspend PremiumProcessing for All H-1B Petitions

StartingApril 3, 2017, USCIS will temporarily suspend premium processing for all H-1Bpetitions. This suspension may last up to 6 months. While H-1B premiumprocessing is suspended, petitioners will not be able to file Form I-907,Request for Premium Processing Service for a Form I-129, Petition for aNonimmigrant Worker which requests the H-1B nonimmigrant classification. Wewill notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or afterApril 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed beforeApril 3, 2017, this suspension will apply to all petitions filed for the FY18H-1B regular cap and master’s advanced degree cap exemption (the “master’scap”). The suspension also applies to petitions that may be cap-exempt.
While premium processing is suspended, we will reject any Form I-907 filedwith an H-1B petition. If the petitioner submits one combined check for boththe Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.
We will continue to premium process Form I-129 H-1B petitions if thepetitioner properly filed an associated Form I-907 before April 3, 2017.Therefore, we will refund the premium processing fee if:

The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to othereligible nonimmigrant classifications filed on Form I-129.

RequestingExpedited Processing

While premium processing is suspended, petitioners may submit a request toexpedite an H-1B petition if they meet the criteria on the ExpediteCriteria webpage. It is the petitioner’s responsibility to demonstratethat they meet at least one of the expedite criteria, and we encouragepetitioners to submit documentary evidence to support their expedite request.
We review all expedite requests on a case-by-case basis and requests aregranted at the discretion of the office leadership.

Why We AreTemporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processingtimes. By temporarily suspending premium processing, we will be able to:

Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

March 3, 2017
Uncategorized

GRASSLEY H-1 BILL INTRODUCED IN THE HOUSE

The H-1B and L-1 Visa Reform Act of 2017,which was proposedrecently in the Senate by Sens. Grassley (R-IA) and Durbin (D-IL) has nowbeen offered in the House. The textof the House version of the bill has not yet been made public but it is expectedto mirror the Senate version of the bill. The House version has four co-sponsors, Bill Pascrell, Jr. (D-NJ), DaveBrat (R-VA), Ro Khanna (D-CA), and Paul Gosar (R-AZ).

The Senateversion of the bill has yetto attract many co-sponsors – no Senators have co-sponsored it since theinitial four co-sponsors were announced on January 20. This is not surprising. The 2015 version of the bill onlyever attracted six Senators co-sponsorship. One of which, Jeff Sessions, is no longer in the Senate and is nowthe embattled Attorney General.

Nonetheless,Sen. Grassley has long been a foe of the H-1B visa. While his version of the bill may not getpassed into law, it would not be surprising if many of the ideas and conceptsthat underlie the bill make up a future revision to the H-1B visa.

The press release offered by thefour House members says that the bill would modify the H-1B and L-1 visaprograms by:

Requiring employers to make a goodfaith effort to recruit and hire American workers before bringing in foreignworkers and prohibits employers from replacing American workers with H-1B andL-1 workers or giving preference to H-1B visa holders when they are fillingopen positions.
Modifying existing H-1B wagerequirements, and establishes wage requirements for L-1 workers.
Prohibiting employers fromoutsourcing H-1B and L-1 visa holders to other sites unless the employerobtains a waiver which is available only in limited circumstances when therights of American workers are protected.
Giving more authority to theDepartments of Homeland Security and Labor to investigate fraud and abuse inthe H-1B and L-1 programs by requiring the two departments to audit employersand share information, ensuring visa petitions are more effectivelyscrutinized.
Prohibiting companies from hiringH-1B employees if they employ more than 50 people and more than 50% of theiremployees are H-1B and L-1 visa holders.
Creating a new H-1B visa allocationsystem that gives top priority to workers who have earned advanced science,technology, engineering or mathematics (STEM) degrees from U.S. institutions.
Increasing penalties on those whoviolate the law, and provides visa holders with a list of rights before theyenter the U.S. to ensure they are better protected against mistreatment orunderpayment of wages.

February 28, 2017
Uncategorized

THE $130,000 MINIMUM H-1B SALARY RUMOR IS FALSE

Over the last few weeks many news outlets have been reporting thatthe minimum salary for an H-1B worker will rise from $60,000 to $130,000. This is false. There is not a minimum floor salary for H-1Bworkers. There is no proposal to raisethat nonexistent floor to $130,000.

There are proposals that seek toraise the minimum salary floor for companies who seek an exemption to the H-1B dependent attestations. This is significantly different than minimumfloor salary for H-1B workers.

Companies that employ more than 15%H-1B workers (so-called “H-1B dependent employers”) have to make two attestationsfor employees who either (i) do not earn $60,000 or (ii) do not hold a US equivalentmaster’s degree.

Displacement Attestation 20 CFR 655.738:The Displacement Attestation is ensures that U.S. workers are not beingterminated or laid off in order to make room for an H-1B worker. H-1B dependent employers who are seeking toemploy an H-1B worker who is to earn less than $60,000 (or does not holda US equivalent master’s degree) must make the Displacement Attestation.

Recruitment Attestation 20 CFR 655.739: The Recruitment Attestation proves that an H-1B employer is attempting tomake a good faith effort to recruit U.S. workers. H-1B dependent employers who are seeking toemploy an H-1B worker who is to earn less than $60,000 (or does not holda US equivalent master’s degree) must also make the Recruitment Attestation.

Again, these attestations do nothave to be made if the employer offers a salary in excess of $60,000 or if theH-1B worker holds the equivalent of a US master’s degree.

There are two different pieces ofproposed legislation that have been introduced into Congress that seek to raisethe exemption floor from $60,000. Rep. Darrell Issa (R-CA)’s proposal raisesthe $60,000 to $100,000. Rep. Zoe Lofgren’s bill proposes that the exemption floor could be raised to $130,000. It is the Lofrgren bill that is the cause of the headlines.

February 22, 2017
Uncategorized

MONTHLY VISA BULLETIN PROJECTIONS: PHILS EB-3 TO ADVANCE INTO 2014

The Department of State’s Visa Bulletin guru, CharlieOppenheim, hosts monthlymeetings with the American Immigration lawyers Association. Charlie Oppenheim is the Department ofState’s Chief 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 Charlie featuredpredictions about EB2 and EB3, which are the most popular categories for readers ofthis Blog. Here are some of this month’shighlights:

Philippine EB-3 –Aswith last month, Charlie again offered his most optimistic predictions forthis category. He said that he expects predictsfuture advancement at a pace of “up to six months.” He expects that the PhilippineEB-3 date should quickly move through 2012 and 2013, and quickly move into2014. This is consistent with internal MU Law analysis, which sees thiscategory progressing at least into 2013 by the summer of 2017.

India EB-2 – Charliehopes that the India EB-2 category can progress at a pace of “up to one month.” He cautions that an increase in EB-3 upgradescould slow the progression of India EB-2.

India EB-3 –There was no specific comment by Charlie. MU Law expects that India EB-3 will progress at about the same 1-2 weekrate as it has in prior months. The IndiaEB-3 date may stall/stop in the summer of 2017, as the full allotment ofnumbers gets used. It will thenrecommence in October. This is normal. It happens every year. Readour FAQ on why the Visa Bulletin progression stops in August and September.

Worldwide EB-2 andEB-3 – EB-2 will remain current for the foreseeable future. Worldwide EB-3 will continue to move aheadsteadily and be effectively current.

China EB-2 and EB-3– These categories are the most difficult to predict because of the upgrade/downgradephenomenon of EB-2 and EB-3. At presentChina EB-3 is 15 months ahead of EB-2.

February 17, 2017
Uncategorized

SEN. HATCH OFFERING BILL TO INCREASE H-1B CAP

Computerworldis reporting that Sen. Orrin Hatch (R-UT) is preparingan H-1B bill, which could raise the H-1B cap as high as 195,000 visas. The current H-1B cap ceiling is 85,000, ofwhich 20,000 are reserved for graduates of at least a US Master’s degreeprogram.

Sen. Hatch’s bill reportedly is an update ofhis 2015 I-Squared Bill. TheI-Squared bill was first offered in 2013. The 2015bill contained many excellent provisions for the IT industry and H-1Bemployers. It remains to be seen whichof these provisions will be in the 2017 version of the bill. Sen. Hatch is to be applauded for his long-standingbelief in the employment-based immigration system and the contributions made byemployment-based visa holders.

The 2015 bill included these provisions:

-provided H-4 spousal work authorization.

-reduced the ability of the USCISto issue harassing H-1B RFEs.

-gave an H-1B worker a 60 day graceperiod at the conclusion of H-1B status.

-allowed H-1B, L-1, O-1, E-1, E-2,and P-1 visa holders the ability to have their visas extended in the US.

-increased green card numbers.

-eliminated the per-countryimmigrant visa quota.

-created funding for US training programsin STEM fields by increasing USCIS filing fees.

February 13, 2017
Uncategorized

PRES. TRUMP’S EXECUTIVE ORDERS: FACT OR FICTION

There are a lot of rumors surrounding President Trump’s Executive Orders. Below is MU Law’s list of Facts and Fictions. Please note that this list is as of this morning, but that things are changing quickly.

FACT: In late January, President Trump issued an ExecutiveOrder banning entry to the US for individuals from Iraq, Iran, Yemen,Syria, Somalia, Sudan, and Libya. Thetravel ban included all individuals from the seven listed countries holding aUS visa, but did not include green card holders or dual nationals.

FICTION: President Trump is planning to add countries to the list in thetravel ban. On February 3, 2017, theAmerican Immigration Lawyers Association (AILA) issued a statement indicatingthe US Department of State had contacted AILA and said that there was no planto add to the list of banned countries.

FACT: On Friday, February 3, 2017, a Federal Judge in the state ofWashington issue a TemporaryRestraining Order (TRO) stopping the enforcement of the travel ban. The US Department of State reinstatedpreviously cancelled visas allowing individuals from the banned countries totravel to the US.

FICTION: The travel ban has been struck down and will not bereinstated. The TRO issued by the Judgeis temporary and lasts only while the case against the travel ban isgoing through the court system. ManyFederal Judges have been issuing rulings on the travel ban and theserulings conflict with each other. It isunknown whether the case will go before the US Supreme Court or whether the President will issue a revised Executive Order.

FACT: President Trump may change the way the H-1B cap cases areallocated. The President, by ExecutiveOrder, can change the manner in which the H-1B cap works from a straightlottery to a preference system. Shouldthis change take place, it is likely that the preferencesystem would favor those with advanced degrees, higher wages, and shortageskills.

FICTION: President Trump is planning to or has already eliminated H-1Bsvisas. The President, on his own, cannotcancel the H-1B visa program. H-1Bs werecreated by an Act ofCongress and it would take an Act of Congress to cancel H-1Bscompletely.

FACT: There will likely be greater requirements for H-1B employers. Mostrecent proposals from Congressional Representatives and from the Presidentinclude additional burdens and restrictions on H-1B employers. These restrictions include: paying higherwages to H-1B employees, documenting the employer has tried to recruit USworkers before filing the H-1B, more site visits, and expansion of e-verify.

FICTION: President Trump has eliminated the H-4 EAD. The H-4 EAD program was created in a regulation. At thistime, the President has made no formal indication that he plans to rescind theH-4 EAD regulations.

FACT: President Trump may be planningto cancel DACA, the program allowing undocumented immigrants, brought tothe US as children, to obtain a stay of deportation and workauthorization. DACA was created by anExecutive Order of President Obama. A draftExecutive Order of President Trump eliminating DACA has been circulated. At this time, DACA remains in effect.

February 9, 2017
Uncategorized

MARCH 2017 VISA BULLETIN: DETAILED ANALYSIS AND PREDICTIONS

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

March 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	C	C	C	C
2nd	C	15DEC12	01JUN08	C	C
3rd	01DEC16	15MAR14	22MAR05	01DEC16	15MAR12

MU Law Analysis

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

China: The China EB-2 date again moved up one month. The China EB-3 date progressed nearly six months! The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers “upgrading” their applications to EB-2.

India: EB-2 India moved up about 6 weeks, while EB-3 India stayed the same, unfortunately.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by nearly six more months. The Philippine EB-3 number essentially cleaned out all 2010 and 2011 EB-3 visas in less than 6 months months. This is what we have 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.”).

____

The Visa Bulletin also included projections for the next several months of Visa Bulletins.

EMPLOYMENT-based categories (potential monthlymovement)

EB-1: The category will remain “Current”.

China and India: A Final Action Date is likelyto be imposed by August.

(MU Law note: this is not unusual and happens most years. This should not concern anyone.)

EB-2:

Worldwide: Current

China: Up to fiveweeks.

India: Up toone month.

EB-3:

Worldwide: Up to three months.

China: Up to sixmonths.

India: Extremely limited forward movement.

Mexico: Will remainat the worldwide date.

Philippines: Up to six months.

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