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NEXT DHS SECRETARY: McCAUL OR KOBACH ?

President-electTrump has spent much of the last few weeks vetting potential cabinetmembers.  Many of the higher profilepositons have been named, such as Attorney General (AlabamaRepublican Senator Jeff Sessions) , Secretary of Defense (Ret.Gen. James Mattis), and UN Ambassador (SouthCarolina Republican Governor Nikki Haley). It is expected that he will name a Secretary of State shortly.

The President-electhas not yet tipped his hand on who will be the Secretary of the Department ofHomeland Security.  The DHS secretarypositon is important because this positon sets DHS policy interpretations forH-1Bs and other employment-based nonimmigrant visas and employment-based greencards.

Two candidates seemto be leading the race to be Secretary of the Department of Homeland Security:Kansas Secretary of State Kris Kobach and Texas Rep. Mike McCaul.  The bettingmarkets have Kobach slightly ahead. While the betting markets are good indicators, they are notguarantees of future outcomes. 

Rep. McCaulprobably would be the better choice for employment-based immigrants andemployers.  In the mid-2000s, Rep. McCaulco-sponsoredand supported several bills aimed at increasing the H-1B cap and increaseemployment-based green cards.  On theother hand, many immigration hardlinersfavor Kobach. 

US RN SHORTAGE TO WORSEN IN THE COMING YEARS

AmericanPublic Media’s radio program Marketplace recently broadcast a storyregarding the nursing shortage in the US, which ispredicted to worsen over the next ten years. The shortage is expected for the following reasons:
  1. Morethan one third of RNs in the United States are over the age of 50 and willbegin retiring or working less hours in the coming years. 
  2. Asthese RNs retire, there are not enough new RNs to fill the open positions. 
  3.  Thecost of training new RNs is going up. Many RNs graduate with over $70,000 of debt, which has dissuaded somestudents from pursuing a career as an RN. This has also led some US lawmakers to consider government grants fornursing students.  
  4.  By2025 nearly 70 million Americans will be over the age of 65 and many will havechronic illnesses which will likely create more demand for RNs in the UnitedStates.
  5.  Many more Americans have access to healthcare underthe Affordable Care Act (also called Obamacare); this too will cause moredemand for medical treatment and the need for RNs.

TheUS Department of Labor, Bureau of Labor Statistics projects employment of RNswill grow16% from 2014 to 2024, much faster than the average for otheroccupations.  Job opportunities for RNsare expected to be good.

MU’s CHRIS MUSILLO TO SPEAK IN CHICAGO, SAN FRANCISCO BAY AREA

MU’s Chris Musillo is a featuredspeaker at the Visa Solutions Seminars in Chicago and in the Bay Area.  Chris is speaking with Dave Brown of Brown Immigration in Omaha, Nebraska.  Chris and Dave bring over 30 years of combined business immigration experience. 

Register here.
The Chicago seminar is Tuesday November29, 2016 8AM – 10AM at the Chicago Marriott Southwest. 
The Bay Area seminars are:
  • Sunnyvale, CA – Wednesday, December7th, 2016 (8AM – 10AM), Plug and Play Tech Center, 440 N. Wolfe Road.
  • Oakland, CA – Wednesday, December7th, 2016 (3PM – 4:30PM), Rosenblum Cellars, 10 Clay Street, Oakland, CA 94607,Complimentary wine tasting included after the event.
  • San Francisco, CA – Thursday,December 8th, 2016 (8AM – 10 AM), Hyatt Regency, 5 Embarcadero Center.

Registration isfree if made in advance of the seminar. The seminar will run for 90 minutes. The morning seminars include a complimentarybreakfast and coffee. 
This program isvalid for 1.5 PDCs for the SHRM-CPSM or SHRM-SCPSM andy has met HRCertification Institute’s (HRCI) criteria for recertification creditpre-approval.
Seminar Topics
  • Navigating the 10Most Important Immigration Issues Facing HR Today
  • How do I structurethe PERM filing to avoid audit triggers?
  • How do I avoidhurting retention/morale while filing H-1s or PERMs?
  • Considering thescarcity of H-1B visas, what other options exist for recruiting foreign talent?
  • When is PremiumProcessing truly necessary and/or paid for by the company? When should acompany allow an employee to pay it personally?
  • How and when shouldemployers initiate the green card process?
  • When does the H-1Bwage obligation start? When does it end? How does an employer effect a bonafide H-1B termination?
  • How do I create theperfect Public Access File and deal with a Department of Labor audit of acompany’s H-1B files? What does the DOL look for?
  • Given last year’sSimeio Solutions decision – when/why must I file an amendment H-1B when someonemoves location? And how do I avoid this problem?
  • How do I manageCustoms and Border Protection issues and their penchant for incorrectly issuingForm I-94s at the port of entry?
  • How should Iprepare for changing immigration policy under Donald Trump?

DECEMBER 2016 VISA BULLETIN: ANALYSIS

The Department of State has just issued the December 2016 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month’s Visa Bulletin.

December 2016 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
22SEP12
01FEB08
C
C
3rd
01JUL16 
01JUL13
15MAR05 
01JUL16 
01JUN11
MU Law Analysis

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

China:   The China EB-2 date moved up two months. 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 three months.  EB-3 moved ahead by one week.  

Mexico: Mirrors All Other in all aspects.

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

We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in FY2017.

HOW THE US ELECTION WILL (OR WON’T?) CHANGE IMMIGRATION

OnTuesday US voters will go to the polls to elect 435House of Reprehensive members, 34Senators, and of course, a new US President and Vice President.  The biennial election will set the stage forthe next two years of federal legislation. Pundits are calling it the mostimportant election of our lifetime and are predicting massivechanges in immigration law.
IfHilary Clinton is elected, she promises to make immigration a top priority.  She iscalling for Comprehensive Immigration Reform including a pathway tolegalization for millions of undocumented and illegal foreign nationals.  She expects to have legislation proposed withinher first 100 days.
IfDonald Trump is elected, he is callingfor  a wall along the US-Mexican borderand greatly increased regulation in all corners of immigration.  His changes to the law willbegin immediately. 
Itseems unlikely to MU Law that any of this happen immediately.  It also seems unlikely that any immigration changeswill be incremental, not dramatic. 
Immigrationlaws are implemented in two basic ways: legislatively and administratively.  Legislative laws must pass both branches ofCongress, the House and the Senate.  The betting markets have concluded thatthe most likely outcome for this week’s election is that Hillary Clinton willwin the presidency, the Democratic Party will have a tiny majority in theSenate, and the House will remain in significant Republican control.  Betting markets have proven to be a more reliable predictor ofelectoral outcomes than polls or pundits. 
Thatoutcome is a recipe for gridlock.  Evenif Hillary Clinton wants to push for a massive legalization program, she willneed to convince at least 50% of the House membership to go along with theplan.  It is unlikely that a Republican-controlled House will want any part of a Clinton-inspired immigration bill.  They will be much more likely to spend their timeon more email investigations and Benghazi hearings.
APresident-elect Clinton may be able to make some progress on administrative changes,which is also known as Executive Action. Administrative changes are interpretations of law by the Department ofHomeland Security.  The Presidentultimately sets all policy for administrative agencies such as DHS. 
PresidentObama had some success in this area, such as sanctioning the DACA rules, whichallowed undocumented foreign nationals to obtain work authorization if theyentered the US as children, provided that they had no other criminalrecord.  
Throughthe USCIS, President Obama announced some additional Executive Actionin November 2014.  He has had mixedsuccess in this area.  He was rebuked bythe courts for overstepping his administrative authority when he sought tocreate DAPA, a program that would have extendedDACA-like rights to undocumented parents of US citizens and permanent residents.  On the other hand, the USCIS has expandedwork authorization for certain spouses of H-1B visa holders. 

Whichleads to our prediction: Hillary Clinton will win the US Presidency but willnot have success passing meaningful immigration legislation.  She may be able to make marginal changes toimmigration policy through administrative decision-making, which will likely beless-dramatic and newsworthy.

PTs SHOULD NOT LET FCCPT TYPE 1 CERTIFICATE EXPIRE

In a recent decision, USCISdemanded FCCPT issue Type 1 Certificates ONLY to graduates ofuniversity programs whose diploma reads “Master’s Degree” and who have at least202.1 credit hours.  Any graduate of aprogram that is equivalent to a US Master’s Degree will no longer be eligibleto enter the US and practice Physical Therapy. In 2017, applicants will need a DPT to obtain a Type 1 Certificate.

Type 1 Certificate renewals willnot be subject to this new ruling. Renewal applications do not examine education, but only licensure andverification of English proficiency.  PTswith a current Type 1 can renew the Type 1 Certificate without being subject tothe new standard.  However, if the Type 1expires, the PT will have to make a new application and will be subject to thenew standard.
Type 1 Certificates are valid forfive years from the date of issue.  MU strongly advises PTs totimely renew their Type 1 Certification so that they can continue to maintaintheir immigration status and their ability to work in the US.

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DEC 23, 2016

Earlier this year in May the USCISpublished a proposedrule to increase fees.  On October24, 2016, the final rule was publishedadjusting the fees for most immigration applications and petitions.  The new fees will go into effect on December23, 2016. 

The new fees are:

Form
Current Fee
New Fee
Change
I-129
$325
$460
$135
I-130
$420
$535
$115
I-140
$580
$700
$120
I-485
$1,070
$1,225
$155
I-539
$290
$370
$80
I-765
$385
$410
$25

A full list of all of the new feescan be found on the USCISwebsite.

The USCIS is almost entirely fundedby the fees paid by applicants and petitioners for immigration benefits.  The fee increase is the first in the last sixyears and.  The fees will go up anaverage of 21 percent and will recover the costs associated with frauddetection and prevention and national security.

DOES A RELEASE AND SETTLEMENT PREVENT AN H-1B WORKER FROM BACK WAGES ?

When an H-1Bemployee separates employment from an H-1B employer, the H-1B employer oftenseeks a Settlement and Release.  Theemployer’s goal is to put the matter to rest. It does not want the H1-B employer to file a private lawsuit seekingback wages or to file a Complaint with the Department of Labor. 
H-1B employers alsooften are seeking to collect on liquidated damage provisions, which allow theemployer to recoup the costs associated with the separation of the employmentrelationship.  Costs such as reputationalloss, replacement costs, and travel costs are usually recoverable under theH-1B rules
H-1B employer andemployees often seek a “global settlement,” which settles all outstandingclaims between the parties. 
A 2015 Departmentof Labor decision, Guptav. Headstrong, 2014-LCA-00008, confirms the appropriateness andenforceability of these settlement agreements.  In Gupta, the Administrative Law Judge heldthat the Settlement and Release extinguish all of the h-1B employee’s claims toback wages.  Notably in Gupta, the two parties were the employerand the employee.  The DOL was not aparty to that lawsuit.
It remainsan open question whether an H-1B employer can legally prevent an employee from filinga Complaint with DOL following a proper Settlement and Release.  The DOL does not want to see any hindrance onan employee’s ability to file a Complaint to their agency. 
In Gupta the Department attempted to havethe ALJ validate their reading of the law buy filing an amicus brief.   The ALJ did not address this issue in theDecision. The Department would not, of course, have bothered to raise the issuein the amicus brief if it were a settled issue of law. 
Nevertheless,an H-1B employee who fairly settles a back wage claim and who subsequently orconcurrently files a complaint with the DOL solely on a back wage claim (andwho continues to assert to the Department that the back wage claim remainsunsettled following a settlement on those same claims) may be committing fraudbefore a government agency.  

CHECKING IN ON THE VISA BULLETIN

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.  This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog.  Here are some highlights:
Philippine EB3 – Charlie again offered his most optimistic predictions for this category.  He expects that this category will move several months at a time because demand from those with priority dates from 2011-12 is lower than originally thought.  This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.  
India EB2 and EB3 – Charlie expects that EB2 will move into November 2008 by  March of 2017.  While he did not comment on EB3 at this time, last month he said that the EB3 category will move only one week per Bulletin.

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future.  It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.

China EB-2 and EB-3 – These categories will continue to see-saw.  The DOS is now seeing the EB-3 category demand pick up because of EB-3 “downgrades” from EB-2.

NOVEMBER 2016 VISA BULLETIN

The Department of State has just issued the November 2016 Visa Bulletin.  This is the second Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month’s Visa Bulletin.

November 2016 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
12JUL12
01NOV07
 C
C
3rd
01JUL16
 22APR13
08MAR05
 01JUL16
01APR11

MU Law Analysis


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

China:   The China EB-2 date moved up 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 over ten months.  EB-3 actually retrogressed one week.  

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 in just two months and is now a trid of the way through 2011.  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.”).  

We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in FY2017.
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Musillo Unkenholt LLC is a full-service immigration law firm headquartered in Cincinnati, Ohio, serving clients throughout the United States and the world.

Our attorneys have vast experience in an array of immigration processes.

Contact

302 West Third Street, Suite 710
Cincinnati, OH 45202

Phone: 513.381.VISA (8472)

info@muimmigration.com

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