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IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The Department of State has just issued the November 2015 Visa Bulletin.  The new revised Visa Bulletin had a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3.   We have a detailed analysis of the Visa Bulletin at the end of this blog post.

The Department ofState now publishes two Employment-based Visa Bulletin charts each month:(1) Final Action Dates (dates when visas may finally be issued);and (2) Dates for Filing Applications (earliest dates when applicants may beable to apply). 

The earlier filingof the I-485 has several direct benefits for both employers and employees:
  • Applicants can filefor their Employment Authorization Documents (EADs) concurrently with theirI-485.  This allows Applicants to take advantage of the AC-21 rulefor same or similar employment.  This also allows applicant to workat second jobs.
  • Applicants can filefor their Advance Paroles (APs) concurrently with their I-485.  Thisallows Applicants to travel without having to obtain a new visa stamp.
  • Spouses ofapplicants can apply for both EADs and APs.  This allows spouse’swork authorization.
  • Fewer H-1Bamendments and extensions should need to be filed.  None of the H-1Bamendment rules apply to people who hold EADs.

November 2015 Visa Bulletin

Final Action Dates
Employment- Based
All Chargeability Areas Except Those Listed
 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01FEB12 01AUG06 C C
3rd 15AUG15 01JAN12 01APR04 15AUG15 15JUN07

MU Law Analysis

All: No change from Oct 2015 Visa Bulletin
China: Both EB-2 and EB-3 progressed a few months from Oct 2015 Visa Bulletin
India: EB-2 jumped from 01MAY05.  This trend may continue.  EB-3 continued its steady but slow progress.
Mexico: No change from Oct 2015 Visa Bulletin
Philippines: EB-3 jumped ahead six months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months. 


Dates of Filing
Employment-
Based		 All Chargeability
Areas Except
Those Listed		 CHINA-
mainland
born		 INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN13 01JUL09 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN10
MU Law Analysis
The Dates of Filing chart did not change from October 2015.  This is not a surprise.  The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin. 

The Plaintiffs lost their bid for a Temporary Restraining Order.  If the Plaintiffs were successful, then the USCIS and DOS would have been forced by the judge to revert back to the original September 2015 Visa Bulletin.

The Dates of Filing chart will not change until one of three things happen.  First, the Plaintiffs could be successful in their lawsuit.  However the lawsuit will take many months.  Witnesses will have to be deposed and documents will have to be shared.  Our sense is that the earliest that the lawsuit could be complete is early 2016.

Second, the Plaintiffs and the USCIS / DOS could settle their lawsuit. Similarly, the USCIS / DOS could respond to public and private pressure to change the Dates of Filing.  Several Congressional Representatives have issued statements to the agencies’ expressing their frustration with these agencies’ haphazard approach to immigration benefits.  

AILA has been working behind the scenes to lobby the agencies for an accurate Dates of Filing chart.  There is a sense among immigration attorneys, MU Law included, that the agencies do not really have a firm grasp of the volume of immigrant visa numbers.  Our evidence for this claim is the seemingly random dates listed on visa bulletins.  The pressure being exerted on the agencies may force the agencies to truly do their job and accurately project Visa Bulletin dates.

Thirdly, the numbers may compel movement. This third path may be the most realistic.  

This is most likely in the Philippine EB-3 category.  As we have seen with the publication of the November Visa Bulletin, the Philippine EB-3 Final Action date jumped ahead six months to June 2007.  This implies that the DOS does not truly know what the demand is for Philippine EB-3 visas.

But we know what the demand is.  MU Law has a very large volume of healthcare-based immigrant visa clients and we know most of heaviest users of healthcare-based immigrant visas and their attorneys.  These clients and friends claim a large portion of the Philippine EB-3 visas.  

Our read is that most (not all) of the Philippine EB-3 priority date recaptures from 2004-2008 have already happened.  We also know that very few Philippine EB-3 immigrant visas were filed between 2009 and 2012. In other words, once the DOS moves the Philippine EB-3 date to 2009, it will have to quickly move that date to 2013.  
Our prediction is that the immigrant visa volume dictates that the DOS will progress the Philippine EB-3 Dates of Filing number in the first half of 2016 and certainly no later than next summer.

DHS TO CREATE FILIPINO WWII VETERANS PAROLE PROGRAM

This blog generallyfocuses on employment based immigration, especially those in the healthcare area.  Today’s’ blog post is not that.  Today’s blog post is focused on a new USCISveterans Parole program for Filipino WWII veterans.  Since so many healthcare works are ofFilipino descent, we though that this item was worthwhile for our readership.
The new program mayenable Filipino family members to provide support and care to their agingveteran family members who are U.S. citizens or lawful permanent residents.
USCIS has merely announcedtheir intention to establish the program. It is not yet effective.   Any applications received before the programis implemented may be denied. USCIS will inform the public when the applicationprocess is in place.  Register to receive email USCISupdates.

SUNSET OF 50/50 H-1B FILING FEES

In 2010, Congresspassed Public Law 111-230.  PL111-230 raised H-1B and L-1 filing fees for employers who have over 50 employeeswith more than 50% of these employees in H-1B or L-1 status.  H-1B petitions were assessed an additional$2,000 in filing fees.  L-1 petitionerswere assed $2,250 in additional filing fees. These additional fees did not stay with USCIS but were deposited intothe US government’s general treasury fund, ostensibly to fund border security.  PL 111-230 was original to end in 2014, butwas re-authorized until September 30, 2015.
At this time, PL111-230 has not been reauthorized and so 50/50 employers no longer need to paythe additional filing fees.  AILAhas confirmed that USCIS is aware of the ending of PL 111-230.

REVISED VISA BULLETIN REVEALS TONE DEAF USCIS

On late Fridayafternoon the USCIS and DOS issued a revisedOctober 2015 Visa Bulletin.  The newrevised Visa Bulletin has a devastating impact on those in the US and whoqualify as China EB-2, India EB-2, and Philippines EB-3. 

Revised October2015 Visa Bulletin (Changes in bold)
Employment- Based
All Other
CHINA – mainland born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
01JAN13
01JUL09
C
3rd
01SEP15
01OCT13
01JUL05
01JAN10

Original October2015 Visa Bulletin

Employment- Based
All Other
CHINA – mainland born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
01MAY14
01JUL11
C
3rd
01SEP15
01OCT13
01JUL05
01JAN15
The USCIS published a stilted “explanation”for the revision,
Following consultations with the Departmentof Homeland Security (DHS), the Dates for Filing Applications for somecategories in the Family-Sponsored and Employment-Based preferences have beenadjusted to better reflect a timeframe justifying immediate action in theapplication process.
For the most part I stay away from commentaryon this blog.  Not today.

This revised Visa Bulletin meansthat the majority of people who could have filed their I-485s on October 1,2015, now must indefinitely wait.  Allowinglong-suffering workers the flexibility that would come with the filing ofI-485s would have been excellent policy.  Implementing that policy was excellentgovernment action.  Implementing thepolicy and then rescinding the policy is incompetence.

These government bureaucrats aretone-deaf to the actual human beings behind these petitions.   These agencies had tenmonths to implement this system.  Theidea that these agencies only consulted in the last two weeks ispreposterous. 

Many of these immigrant workers spentthousands of dollars hiring counsel to prepare their Applications.  They took time off from their jobs to subjectthemselves to ridiculously unnecessary (and costly) medical examinations. 

Worse than the dollars spent and thetime spent is the crushing of these immigrants’ hope.  These are the immigrants who continually get trashedby an immigration system that cannot get out of its own way. 

There are already rumors that theUSCIS and DOS are being threatened with lawsuits.  There is also a rumor that the USCIS and DOSmay not want to repeat the fiasco that was the Visa Gate in 2007, and thereforemay rescind this Revised Visa Bulletin.  

FCCPT: ICMT CLAIMS ARE FALSE

TheForeign Credentialing Commission on Physical Therapy (FCCPT) has posted notice on its website that theIndian College of Management & Technology is making false claims about itsrelationship with FCCPT.  FCCPT issued a cease and desist letter to ICMT on August 26, 2015. 

Accordingto FCCPT, ICMT claims to provide “A Program 100% Approved and Accepted byF.C.C.P.T, USA”.  FCCPT comments that “ICMThas no working relationship with FCCPT, and FCCPT has not approved courseworkcompleted at ICMT. FCCPT accepts some coursework completed at ICMT studycenters for recognized Indian Universities with recognized physiotherapyeducation programs. However, all credits must be granted by the Universities.”   FCCPT reminded applicants to limit their coursework to recognized educational institutions if the applicants want their coursework to be credited.

AAIHR CODE OF ETHICS

Because of thelong‐term personnel shortages in the healthcare industry, foreign‐educated andtrained personnel must play a part in the solution to the healthcare problemthat America is facing. Stakeholders are actively trying to abate this problemthrough investments in foreign educated personnel.

These investmentswill only be sustainable if the standards of this industry meet the highstandards set by the healthcare industry. The Ethical Code developedby the AAIHR takes a 360 degree approach to ethical recruitment and ensuresresponsible international healthcare recruitment.

As a member of theAAIHR Code of Ethics Committee, I have seen the Code work in practice. Our office has endorsed the AAIHR Code ofEthics.  If you are a stakeholder in theworld on international healthcare recruitment, please consider endorsing theCode and/or joining the AAIHR.

MORE NEWS AND ANALYSIS ON THE NEW VISA BULLETIN

AILA has published anew Q&A with Charlie Oppenheim, who is the DOS’ Visa Bulletinguru.  Charlie points out a number ofinteresting points about the newVisa Bulletin. 
  • The DOS may notalways publish a monthly Dates of Filing chart. If it does not publish a chart, then the only I-485s that will be acceptedby USCIS are those petitions with priority dates earlier than the “Final Action”chart.  Each month, the Visa Bulletin will indicate whether USCISwill accept adjustment applications during the upcoming month.
  • The new VisaBulletin will not slow the overall processing times for immigrant visas. 
  • Charlie does notexpect the “Final Action” chart to retrogress for the foreseeable future.  The DOS expects to be able to give better forewarningwhen retrogression may occur.  The “whiplash”effect of dates moving aggressively forward and backward is expected to nolonger occur because the DOS will have much better data regarding the actualnumber of immigrant visas that are being demanded.
  • The “Dates ofFiling” Visa Bulletin chart is not expected to change much from month to month,but when it does move it is expected to move only forward, albeit slightly.
  • The “Dates ofFiling” chart always has always existed but its application was limited toConsular Process petitions.  Overseasimmigrant visa petitioners have always received their NVC Fee Bills severalmonths earlier than indicted by the Visa Bulletin.  The only change that has occurred is that theDOS is now publishing this chart.

NEW VISA BULLETIN ALLOWS EARLY FILING OF I-485s

In a ground-breaking change, the Departmentof State and the USCIS have changed their process for accepting I-485,Applications for Adjustment of Status.  Adjustmentof Status applications will now be accepted earlier than when the priority dateis current. 

The Department of State will nowpublish two Employment-based Visa Bulletin charts each month: (1) ApplicationFinal Action Dates (dates when visas may finally be issued); and (2) Dates forFiling Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 hasseveral direct benefits for both employers and employees:
  • Applicants can file for their EmploymentAuthorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage ofthe AC-21 rule for same or similar employment. This also allows applicant to work at second jobs.
  • Applicants can file for their AdvanceParoles (APs) concurrently with their I-485. This allows Applicants to travel without having to obtain a new visastamp.
  • Spouses of applicants can applyfor both EADs and APs.  This allowsspouse’s work authorization.
  • Fewer H-1B amendments and extensionsshould need to be filed.  None of theH-1B amendment rules apply to people who hold EADs.



If you are an employer or anemployee who can now file an I-485, please contact our office sothat we can prepare and file your I-485.

The new October2015 Visa Bulletin is:

A. APPLICATION FINAL ACTION DATES

This Chartis comparable to the old Visa Bulletin.

Employment- Based
All Other
CHINA – mainland born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
01JAN12
01MAY05
C
3rd
15AUG15
15OCT11
08MAR04
01JAN07



B. DATES FOR FILING OF EMPLOYMENT-BASEDVISA APPLICATIONS

Applicantsfor immigrant visas who have a priority date earlier than the cut-offdate in the chart may:

  • ConsularApplicants:  assemble and submit requireddocuments to the Department of State’s National Visa Center, following receiptof notification from the National Visa Center containing detailed instructions.
  • Adjustmentof Status Applicants: file Adjustment of Status, EAD and APs.

Employment- Based
All Other
CHINA – mainland born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
01MAY14
01JUL11
C
3rd
01SEP15
01OCT13
01JUL05
01JAN15


USCIS ALLOWS ANYONE TO PAY IMMIGRANT FEE

InFebruary 2013, the USCISlaunched a new Immigrant visa fee  of$165.00 for Consular Processed Immigrant Visa (green card) appointments.  This fee does not apply to I-485, Applicationsfor Adjustment of Status.
Applicantspay online through the USCIS website after they receive their visa package fromDepartment of State and before they depart for the United States.
USCIShas now simplified the process for payingthe USCIS Immigrant Fee online in their electronic immigration system.  USCIS says that the revised payment processreduces the amount of information an immigrant must provide to USCIS.
Notably,anyone can now pay the fee, as long as they have the immigrant’s AlienRegistration Number (A-Number) and DOS Case ID.
TheUSCISImmigrant Fee is required for individuals immigrating to the United Statesas lawful permanent residents. USCIS uses this fee to process, produce, anddeliver Permanent Resident Cards (Green Cards).

REMINDER: MU Law Client Conference Call

Musillo Unkenholt will hold a freeteleconference on Thursday September 3, 2015 at 3PM ET / 12 noon PT.  Allclients and friends of the firm are encouraged to dial-in to the call.  Ifyou would like to register for the call, please send an email to:Annalisa@muimmigration.com.
The agenda for the teleconferenceincludes:
* H-1B onboarding starts Oct 1: Whatdo employers need to do to stay compliant?
* When does my H-1B worker have tostart working?  The 30/60 day rule.
* Update on the Simeio Solutionscase and Amended H-1Bs.
* When do I have to start paying anH-1B worker’s salary?
* Form I-9 compliance
* E-Verify compliance
* Managing Social Security numberissues.
* Handling Professional licensureissues.
* Working with the Consulate forH-1B Visa Issuance.
* H-1B cap 2015 final numbers andprojections for 2016
Please contact your MU immigrationattorney if you have any questions about this MU Visa Advisor or any other immigration issue.
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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.

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302 West Third Street, Suite 710
Cincinnati, OH 45202

Phone: 513.381.VISA (8472)

info@muimmigration.com

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