Musillo Unkenholt Law | Healthcare Immigration Blog

February 5, 2017
Uncategorized

TRUMP “MUSLIM BAN” LIFTED TEMPORARILY

Overthe weekend a federal court in the State of Washington stoppedPresident Trump’s three part ban on immigration of certain nationals. This Judge’s Temporary Restraining Order wasaffirmed by an appellate court shortly thereafter.

Becausethis TRO is temporary, MU Law urges all nationals in the three classes listedbelow immediately to attempt to enter the United States. The TRO could be rescinded at any time. If theTRO is rescinded, the ban will go back into effect, in part or in whole.

Thethreeclasses of individuals impacted by the ban:

Barring nationals of seven countries from enteringthe US for 90 days. The seven countriesare: Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen. These nationals are barred regardless ofwhether they have cleared background checks and hold valid nonimmigrant (temporary)or immigrant (permanent) visas.

Suspending the U.S. Refugee AdmissionsProgram (USRAP) for 120 days. This provisionalso says that once the 120 day period has ended, that the US government must prioritizerefugee claims “made by individuals on the basis of religious-basedpersecution, provided that the religion of the individual is a minorityreligion in the individual’s country of nationality.” Since Islam is the majority religion in many countries,this provision appears aimed at prioritizing Christians’ refugee claims, which PresidentTrump has stated is one of his goals.

Permanent suspension of all Syrian refugeesuntil such time as President Trump sees fit to lift the permanent ban onSyrians.

January 31, 2017
Uncategorized

TRUMP EXECUTIVE ORDER

On Friday, January 27, 2017, President Trump issued anExecutive Order titled “Protectingthe Nation from Foreign Terrorist Entry into the United States.”

Among other provisions, the Executive Ordersuspends entry of nationals from seven designated countries for 90 days fromthe date of the order. These sevencountries are:

– Iran

– Iraq

– Libya

– Somalia

– Sudan

– Syria

– Yemen

The order does not define what “from” one of the sevendesignated countries means. Due to thevagueness of the order, it is best to interpret “from” as including passportholders, citizens, nationals, and dual nationals from these seven designatedcountries.

There is an exception for refugees that were in transit tothe US at the time the order was issued. In addition, the Secretary of the Department of Homeland Security (DHS) announcedon Sunday that Legal Permanent Residents (green card holders) would be able toenter the US, absent significant derogatory information indicating the greencard holder posed a threat to US national security.

After the 90 day ban, travel is not automaticallyreinstated. The US DHS is required toreport whether countries have provided information needed to determine that theforeign national(s) is not a security or public safety threat.

Several court cases have been filed challenging thePresident’s Executive Order. These courtcases have generally been decided against the order, but none of the cases havespecifically struck down the order. Reports indicate that each US airport is enforcing the President’sExecutive Orders differently.

Please note that thesituation is fluid and may change at any time. If you have specific questions about your case please contact your MUattorney.

January 25, 2017
Uncategorized

GRASSLEY, DURBIN REINTRODUCE H-1B BILL

Sens. Grassley (R-IA) and Durbin(D-IL) have reintroduced their H-1B bill. They have introduced a version of this bill for the last severalCongressional sessions. The last versionof the bill only attracted 5 co-sponsors, and never had any significant tractionin Congress. This term, competing andrelated House bills have been offered by Rep.Issa and Rep.Lofgren.

It remains unclear how this onediffers, if at all, from the last versions, since the textof the bill has not yet been released. The lastversion of the bill included several significant changes to the H-1Bprocess. That bill creates a preference systemfor the H-1B lottery, which prioritized H-1B workers in this order:

Masters (or greater) degree in STEMfrom a US university
Companies who offer a Level 4 wagefor that H-1B worker
Masters (or greater) degree in anyother major from a US university
Companies who offer a Level 3 wagefor that H-1B worker
Bachelor’s degree in STEM from a US university
Bachelor’s degree in any othermajor from a US university
Schedule A occupation
Good corporate citizens

Other components of the bill included:

H-1Bs must pay at least a level 2wage for all H-1Bs
Require a posting on USA jobs.gov for30 days prior to filing an H-1B
Employer must certify that no USworker has been displaced and that the employer has attempted to recruit USworkers
50/50 employers are barred from theH-1B process
H-1B limited to 3 years, unless theH-1B worker has an approved I-140
Additional burden for employers whoplace workers at third-party worksites.
Increased investigative power forDOL
Changes to the L-1 program

January 23, 2017
Uncategorized

VISA BULLETIN: “CONSISTENT FORWARD MOVEMENT” EXPECTED FOR PHILS EB-3

The Department ofState’s Visa Bulletin guru, CharlieOppenheim, 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 Charlie featuredpredictions about EB2 and EB3 in most of the popular categories for readers ofthis Blog. Here are some highlights:

Philippine EB3 – Charlie again offeredhis most optimistic predictions for this category. He said that he expects “consistent forwardmovement” in the EB-3 Philippines category. While he does not expect the Philippines EB-3 to catch up to theWorldwide date, he expects Philippines EB-3 to “recover significantly”. This is consistent with internal MU Law analysis, which sees thiscategory progressing at least into 2013 by the Summer of 2017.

India EB2 and EB3 – Unfortunately thenews is not so rosy for Indian nationals. Neither EB2 nor EB3 is expected to progress to any significantdegree.

Worldwide EB-2 and EB-3 – EB-2 willremain current for the foreseeable future. It is our expectation that WorldwideEB-3 will continue to see a slight retrogression, consistent with the recentpast. The Worldwide EB-3 date may stallin the Spring/Summer of 2017, as the full allotment of numbers gets used. It will then move quickly again into the nextfiscal year.

China EB-2 and EB-3 – Thesecategories are the most difficult to predict. The DOS is trying to be conservative in theforward progression of these dates in an effort to stop the see-saw progressionand retrogression of dates that we have seen in the recent past.

January 19, 2017
Uncategorized

MU LAW, AAIHR, AILA SUCCESSFULLY RESOLVE MANILA POST PROBLEMS

For much of thesecond half of 2016, the US Embassy at Manila has been delaying Visaappointments because of a bad interpretation of law. Through the combined effort of MU Law, AAIHR,and AILA, it appears that the Manila Post willno longer incorrectly interpret these visa applications, which should lead tospeedier visa issuance.

The Manila Post wasincorrectly readjudicating previously approved green card applications. In some instances, these applications wereseveral years’ old. The Post would oftenask for updated prevailing wage determinations, posting, and labor certifications. MU Law and the AAIHR, through AILA and other communicationchannels spent much of the second half of 2016 explaining in detail why these readjudicationswere contrary to law. Theseinterpretations were limited to the Manila Post. Other Posts were not readjudicating thesetypes of applications.

The Post has confirmedthat they agree with our legal position and will no longer readjudicate these applications. The Post has also set out a framework toprioritize these types of matters.

In the last week or two, MU Law has noticed that visa application delays have ceased, which likely is the result of this Manila Post policy change. MU Law commends the Manila Post on its willingness to dialogue on this issue.

January 18, 2017
Uncategorized

H-1B & TRUMP ADMINISTRATION TELECONFERENCE FEB 15, 2017

MU VISA ADVISOR:

In anticipation of the H-1B cap filing date of April 1,2017, MU Law will be holding a free teleconference for our clients and friendson February 15, 2017 at 2PM / 11AM PT. Interested clients and friendsshould email MU’s Annalisa Smith,who will register you for the teleconference.

Last year the H-1B cap wasreached in the first week. We expect that the demand will be even greaterthis year. It is imperative that all H-1B cap-subject petitions arefilled on April 1, 2017.

We will also have a specialupdate on the new Trump administration. MU Law’s Chris Musillo istraveling to Washington DC in early February. On this call, Chris willprovide an update on what potential changes will be coming to employment-based immigrationin light of the new administration.

H-1B TeleconferenceAgenda

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

Hot issues:

Cap-gap for 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.

Pleasecontact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.

January 11, 2017
Uncategorized

FEBRUARY 2017 VISA BULLETIN: ANALYSIS

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

February 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	15NOV12	15APR08	C	C
3rd	01OCT16	01OCT13	22MAR05	01OCT16	15OCT11

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues. Consular processed EB-3 are effectively current.

China: The China EB-2 date moved up one month. The China EB-3 date also progressed about one month. 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 and EB-3 India stayed virtually the same, unfortunately.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another three months. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and much of the 2011 EB-2 visas in just five 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.”).

January 9, 2017
Uncategorized

ISSA OFFERS H-1B BILL AIMED AT H-1B DEPENDENT EMPLOYERS

Last week, Rep.Darrell Issa (R-CA) proposedthe Protect and Grow American Jobs Act, which has been co-sponsored by CongressmanScott Peters (D-CA). The bill is aimed atH-1B dependent employers.

H-1B dependentemployers are employers whose workforce is comprised of at least 15 percentH-1B workers. The 15 percent rule ismodified for H-1B employers with fewer than 25 employees.

“H-1B dependent employers”must make two additional attestations to the USCIS in order to have an H-1B petitionapproved, above and beyond the usual H-1B requirements and attestations.

The two attestationsaffirm that the employer has (i) taken steps to insure that no US workers arebeing displaced as a result of the H-1B petition and (ii) taken steps torecruit US workers for these positions.

Under current law,H-1B dependent employers are exempt from these two attestations if they agreeto pay the H-1B worker at least $60,000 per year and/or the H-1B worker holdsat least the equivalent of a US master’s degree.

Accordingto his website, Cong. Issa’s bill makes two changes to the law. The bill raises the first exemption to$100,000 per year and eliminates the master’s degree exemption. The full text of the bill has notyet been released.

December 15, 2016
Uncategorized

HIGH-SKILLED WORKER REGULATION SUMMARY

The USCIS recently finalized a newregulation to benefit high-skilled workers which will go into effect on January17, 2017 – just three days before President-Elect Trump is inaugurated. The regulation was purposely timed to precedethe new Trump administration. Opinionsare mixed on whether the new regulation will stay in effect, or will beimmediately revoked or rewritten when President Trump takes office.

Some important highlights of theregulation are:

· New 60 Day Grace Period. H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 daygrace period in the event that the principal visa status holder loses his/herjob. The grace period will allow thesenonimmigrant visa holders to remain in the US and find a new job. The 60-daygrace period may be provided to an individual only once per authorized validityperiod. An individual may be providedother such grace periods if he or she receives a new authorized validity periodin one of the eligible nonimmigrant classifications.

· Flexibility for H-1B licensedoccupations. The USCIS will approve H-1B petitions for avalidity period of up to one year where the applicant can prove that the H-1Bemployee does not have a US professional license due to the State’s requirementof a social security number, US employment authorization, or a similartechnical requirement. This has beenUSCIS policy, but is now officially law. Unfortutnly, the USCIS still has much discretion in this area tointerpret local state licensure law.

· EAD extensions. An EAD will automatically beextended for 180 days, as long as an EAD extension was filed before theexpiration of the current EAD. This willprovide needed certainty of continued work authorization.

· Cap-Exempt Employers. The new rule reworks the H-1Bcap-exempt employers rule for employers who are affiliated with an institute ofhigher education in two ways.

o DHS isreplacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.” This is a less-restrictive standard than thecurrent “primary purpose” rule. Goingforward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directlycontribute to the research or education mission of the institution of highereducation.

o Anon-profit that has a formal written agreement that establishes an “activeworking relationship” with a University, no longer has to have shared ownershipand control. This is also a lesser standard than at present.

· Retentionof I-140 in almost all situations. This new rule clarifies existing USCIS policy that allows Beneficiariesto generally retain their I-140s even if the prior employer revokes the I-140. This will allow these Beneficiaries to (i)recapture the I-140 priority date in future green card applications and (ii)take advantage of spousal work authorization rules without fear of anunderlying I-140 revocation.

December 12, 2016
Uncategorized

JANUARY 2017 VISA BULLETIN: NEWS AND ANALYSIS

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

January 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	15OCT12	15APR08	C	C
3rd	01AUG16	08SEP13	15MAR05	01AUG16	22JUL11

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues. For Consular processing cases an August 2016 date is effectively Current.

China: The China EB-2 date moved up about one month. The China EB-3 date progressed three 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 had another impressive progression from last month, moving forward two months. EB-3 stayed the same unfortunately.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another seven weeks. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just four 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.”).

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