DOL CASE HIGHLIGHTS ALL ASPECTS OF H-1B EMPLOYER LIABILITY
May 23, 2016
A recent Departmentof Labor decision, DeDios v. Medical Dynamic Systems, Inc.,is a great primer on how employers and attorneys should treat H-1B employeesalary obligations. The case highlights severalkey issues: when does an H-1B employer’s salary obligation begin, when does itend, whether an employee may pay the H-1B filing and professional fees, and howto treat “benching”.
MU Law is using the DeDios case for a series on H-1B employer wage obligations. We have also updated our “Top 10things employers should keep in mind in order to stay compliant with the H‐1B visaprocess”. If you would like acopy of the Top 10, pleaselet us know.
The series will run over the next few blog posts.
The series will run over the next few blog posts.
UPDATES ON THE VISA BULLETIN
May 18, 2016
AILA recentlypublished its May“Check-In with Charlie”. The Check-Inis a Q&A with the Department of State’s Chief of the Visa Control andReporting Division. Charlie isultimately the person responsible for the publication of each month’s VisaBulletin. This month’s Check-In providedthese insights into the Visa Bulletin for Beneficiaries of the most commonemployment-based immigrant visas.
India. The EB-2 date will only advance slowly forthe remainder of the US Fiscal Year, i.e. until October 1, 2016. The EB-3 date will also move slowly for therest of this fiscal year.
China. EB-2China has a more favorable date than EB-3 China. This is expected to remain in place for theremainder of the fiscal year. SinceChina EB-2 is now more favorable than China EB-3, it is expected that EB-3 “downgrades”will end.
USCIS PUBLISHES PROPOSED FILING FEE INCREASE
May 12, 2016
On May 4, 2016, theUSCIS publisheda proposed rule that will increase filing fees by an average of 21 percent. The proposed fees for most businessimmigration filings are in the table, below. The above-link will lead the reader to thefull list of proposed increases.
USCIS is takingpublic comments through July 5, 2016. They last raised their fees in 2010. USCIS fees basically pay for the entire USCIS budget. Very little of the USCIS’ budget comes fromfederal tax dollars.
Proposed fees
Form | Current Fee | Proposed Increase | 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 | +$30 |
JUNE 2016 VISA BULLETIN: ANALYSIS AND PREDICTIONS
May 10, 2016
The Department of State has just issued the June 2016 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2016.
June 2016 Visa Bulletin
Final Action Dates
Applications with these dates may be approved for their Green Card (Permanent Residency card).
| Employment- Based | All Chargeability Areas Except Those Listed | CHINA - mainland born | INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C |
| 2nd | C | 01JAN10 | 01OCT04 | C | C |
| 3rd | 15FEB16 | 01JAN10 | 22SEP04 | 15FEB16 | 01NOV08 |
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 remains at Feb 15, 2016, just as it was last month. These dates continue to be very favorable. We expect that All Other dates will continue to be positive for the foreseeable future.
China: Both Chinese categories retrogressed, reflecting greater demand. The DOS predicted that EB-3 would retrogress in a note to last month's visa bulletin.
India: EB-3 moved ahead a few weeks. But the EB-2 retrogressed by four years. We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.
India: EB-3 moved ahead a few weeks. But the EB-2 retrogressed by four years. We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead three more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.
Dates of Filing
Applications with these priority dates should see their Consular Process application progress. The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization.
| Employment- Based | All Chargeability Areas Except Those Listed | CHINA- mainland born | INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C |
| 2nd | C | 01JUN13 | 01JUL09 | C | C |
| 3rd | C | 01MAY15 | 01JUL05 | C | 01JAN10 |
MU Law Analysis
These dates did not change from the prior Visa Bulletin.
USCIS ISSUES NEW OPT STEM EXTENSION PROGRAM
May 4, 2016
OnMarch 11, 2016 the USCIS published the rules of a new, expanded STEM ExtensionOPT program. The new STEM Extension will go into effect Tuesday, May 10,2016. Among other changes, the program extends the length of the STEMExtension from 17 months to 24 months and that students are now permitted anaggregate of 170 days of unemployment for OPT and the STEM Extension period. For more information, please visit https://studyinthestates.dhs.gov/
EMPLOYERREQUIREMENTS
Thenew STEM Extension Program requires more from employers. To employ a student under the new STEMProgram, employers must:
- Bean E-Verify employer. This remainsunchanged from the previous STEM Extension Program.
- Paythe student a wage commensurate to similarly situated US workers. The calculation of this wage should bedocumented in the student’s employment record.
- Employthe OPT student for at least 20 hours per week in a position that is directlyrelated to the student’s degree.
- Reportany material changes in the student’s employment to the appropriate schoolofficial. Material changes include: achange in the student’s hours, compensation, worksite, supervisor, or changesto the corporate structure. Employersmust also report a termination or resignation of employment to the schoolofficial within 5 business days.
- Besubject to site visits by USCIS Officers to verify the student’s employment.
- Completeand comply with a training plan for the student’s employment. See below for additional details about thetraining plan.
TRAININGPLAN
TheSTEM Extension Training Plan has four components:
- Describethe student’s role. List specific tasks,give time frames and goals, describe the phases of the student’s training.
- Identifythe goals and objectives of the training. State specific skills, techniques, or knowledge the student will gainwhile employed and describe projects or assignments where the student will usethese skills.
- Detailthe employer’s oversight of the student. State the frequency with which the student will meet with his/hersupervisor. Detail how the supervisorwill review or sign off on the student’s work and describe any existingtraining programs in place.
- Definethe measures and assessments by which the student will be evaluated. Detail how the student’s progress will betested. Note any new technologies orskills which will be learned and keep a journal of or regular reviews ofstudent’s work.
Employer’sCertification
Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the ImmigrationService. By signing the training plan,the employer confirms:
- Employmentis directly related to the student’s degree and achieves the objectives of thetraining program;
- Studentwill receive supervision and training by experienced staff;
- Employerhas sufficient resources and personnel to provide training to the student;
- TheOPT student is not replacing a full- or part-time, temporary or permanent USWorker. The terms and conditions of thestudent’s employment are commensurate with similarly situated US Workers at thecompany.
- Thetraining complies with all applicable federal and state requirements related toemployment.
TRANSITIONRULES
Thereare three primary groups of students impacted by the implementation of the newSTEM Extension Program:
1. Studentson a 17 month STEM Extension.
- Thesestudents with 150 days of time left on their OPT can apply for an additional 7months of OPT, giving them the full 24 months of STEM OPT.
- These7 month requests must be filed between May 10 and August 8. The request requires a new I-20, I-765, andfiling fee.
- Ifthe student elects not to ask for the 7 month extension, the student completesthe STEM OPT Period under the old rules.
2. Studentswith a pending STEM Extension on May 10, 2016.
- Thenew rules apply to the STEM extension request. These students should expect an RFE to be issued requesting a trainingplan and other new requirements.
- Byresponding to the RFE the student amends the STEM OPT to the full 24 monthperiod without filing a new request.
3. Studentson a 12 month OPT.
- Ifthe OPT expires before May 10, the student should file for the 17 month STEMExtension and expect an RFE (as outlined in #2 above).
- Ifthe OPT expires after May 10, the student should file by June 1 under eitherSTEM Extension Program - the 17 month or 24 month.
- Ifthe OPT expires after June 1, the student must file the STEM Extension underthe 24 month program.
PROPOSED H-2C LAW WOULD ALLOW QUICK VISAS FOR NURSES, OTHER NON-H-1B OCCUPATIONS
May 3, 2016
Sen. Flake’s bill,the WillingWorkers and Willing Employers Act of 2016, will allow workers who work inJob Zones 1 through 3 to perform year-round non-agricultural work in the UnitedStates.
Job Zones 1-3generally are those positions that require less than a bachelor’sdegree, such as registered nurses, licensed practical nurses, physicaltherapy assistants, occupational therapy assistants, caregivers, and othersimilar allied health professionals.
Sen. Flake’s billincludes many US worker protections, such as:
- Sponsoringemployers would have to pay a “Scarcity Recruitment Fee,” in addition to USCISfiling fees. This fee is equal to 5 percent of the H-2C’s annualsalary.
- Thejob must be in a full employment area, which is a county whose unemploymentrate is 4.9 percent or less.
- Employershave to attest that there are no US workers being laid off as a result of theH-2C workers’ employment.
- Employershave to prove that they have actively recruited US workers for the position.
- Employerswould have to participate in E-Verify.
The H-2C programwould be active for 10 years. It will have a flexible cap of 45,000 –85,000 depending on demand.
H-2C visa holderswould also be barred from bringing in any family members into the US. However they would be able to file for permanent residency, at which time theirfamily members can come to US.
Unfortunately, mostpundits give Sen. Flake’s bill virtually nochance of passing. While this bill is not perfect, it is good to seethat there are some Republican Senators who still understand the value thatimmigration brings to the US.
NURSE SHORTAGE SHOWING SIGNS ALL ACROSS THE US
April 28, 2016
As the economyimproves, the nursing shortage will continue to escalate. The reasons are many: Baby Boom Generation Demand, Aging NursingWorkforce, Few Nurse Educators, Distribution Challenges, and a lack of availablevisa for Foreign-trained Nurses.
We may beapproaching the tipping point. We are beginningto signs from all across the US that nursing shortages are impacting patientcare. All of the articles linked belowhave been published in the last 10 days.
Alabama:“Schoolnurses in the Mobile County Public School System say they're in a crisis. Manyspoke at the board meeting Monday night to explain how not having enoughnurses is putting children's lives in danger.”
SouthDakota: “A shortage of registerednurses has become so severe at one South Dakota hospital that it’s actuallybeen forced to close hospital beds.”
Oregonand Washington: “Oregon and Washington will be short a combined 13,000 registered nursesby 2025”. This article cites the agingnursing workforce, the distribution problems, and the lack of nurse educators.
Georgia:“A nurseshortage has driven up wages, making it hard for nonprofits like hers tocompete.”
Kentucky:“the onething abundantly clear is that the problem lies not only in putting students inseats, but in finding educators to get them to the cap and gown.”
DOS ADDRESSES EB-3 PHILIPPINES AND INDIA VISA BULLETIN RETROGRESSION
April 19, 2016
AILA regularlychecks in with Charlie Oppenheim, who is the Department of State’s expert onVisa Bulletin numbers. Their most recentCheckIn with Charlie contains his projections for several major visa categories.
EB-3 Philippines
The expectation isthat Philippines EB-3 VB date will continue to advance a few months at a time,consistent with movement over the past few months. He “hopes” that the date will progress intomid-2010 before the end of this fiscal year in September 2016.
There are currentlyabout 4,200 immigrant visas in the pending demand file. The Texas Service Center has 1,600, the NebraskaService Center has 1,200, and the US Consulate in Manila has 1,400.
Charlie expects EB2Philippines to be current for the foreseeable future.
EB-2 and EB-3 India
Both India EB-2 andEB-3 will move slowly forward, although because of unusual demand for EB-1 itis difficult for Charlie to accurately predict movement in these categories. Normally, light demand for EB-1 numbers meansthat unused EB-1s trickle down into the EB-2 category. The government is also seeing increased upgradedemand, where previously approved EB-3s are now being re-field as EB-2s.
New Final ActionDate for EB-4 for El Salvador, Guatemala and Honduras
The usual sight ofthese countries appearing on the Visa Bulletin is because of demand for EB-4 SpecialImmigrant Juvenile (SIJS) applicants. While this means retrogression for these categories, it should have noimpact on the traditional EB-1, EB-2, or EB-3 categories in other countries.
EB-2 and EB-3China
It will likely benecessary to retrogress these categories due to increasing demand for theseimmigrant visas.
USCIS CONFIRMS 236,000 H-1B PETITIONS WERE FILED
April 15, 2016
USCISannouncedon April 7, 2016, that it has received 236,000 H-1B cap-subject petitions,which is slightly more than the 233,000 H-1B cap-subject petitions that were receivedin 2015. USCIS is in the process ofrunning the H-1B lottery. USCIS willbegin premium processing for H-1B cap cases no later than May 16, 2016.
USCISwill continue to accept and process petitions that are otherwise exempt fromthe cap. Petitions filed on behalf of current H-1B workers who have beencounted previously against the cap. USCIS will continue to accept and processpetitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.