MAY 2016 VISA BULLETIN
April 12, 2016
The Department of State has just issued the May 2016 Visa Bulletin. This is the eighth Visa Bulletin of Fiscal Year 2016.
May 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 | 01SEP12 | 22NOV08 | C | C |
| 3rd | 15FEB16 | 15AUG13 | 01SEP04 | 15FEB16 | 01AUG08 |
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 remains at Feb 15, 2016, jsut 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: Neither Chinese category moved this month. This May Visa Bulletin included a note on Chinese EB categories:
CHINA E3: There has been an extremely large increase in Employment Third preference applicant demand in recent weeks. This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference. This has resulted in the Third preference final action date being held for the month of May. Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.
India: EB-2 and EB-3 moved ahead a few weeks.
CHINA E3: There has been an extremely large increase in Employment Third preference applicant demand in recent weeks. This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference. This has resulted in the Third preference final action date being held for the month of May. Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.
India: EB-2 and EB-3 moved ahead a few weeks.
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.
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 REACHES FY 2017 H-1B CAP
April 8, 2016
In a surprise to no-one, U.S.Citizenship and Immigration Services (USCIS) has reached the congressionallymandated H-1B cap of 85,000 visas for fiscal year (FY) 2017.
Asin the last few years, USCIS will use a computer-generated process (H-1Blottery) to randomly select H-1B petition “winners”. The agency will reject and return filing feesfor all unselected cap-subject petitions.
USCIS’press release indicates that it cannot yet determine when it will conductthe random selection process. USCIS willbeginpremium processing for H-1B cap-subject petitions requesting premiumprocessing no later than May 11, 2015.
Internationalworkers who are working in the U.S. on an H-1B visa with another cap-subjectemployer are not subject 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.
Likewise,H-1B extensions and amendments are also not subject to the H-1B cap. MU Law recently posted a blog on alternativesto the H-1B cap, whichyou can access here.
OPTIONS IF YOU LOSE THE H-1B LOTTERY
April 1, 2016
The H-1B cap openedon April 1, 2016. On April 7, 2016, orshortly thereafter, the USCIS will announce that it has received more than85,000 H-1B petitions, which is the H-1B cap limit. MU Law believes that the USCIS will reportsthat at least 200,000 H-1B petitions will have been filed, and perhaps as manyas 250,000. As a result, the USCIS willhold an H-1Blottery.
The H-1B cap is clearlya drain on the US economy. Nonetheless,until Congress acts to help the American economy and raises the H-1B cap, theH-1B lottery will result in many otherwise qualified H-1B workers having toconsider alternative visa options. Hereare some options:
- Those that have hadan H-1B in the past are often not counted against the H-1B cap. If you have had an H-1B approved in the past,you should contact your attorney, even if you have never entered the US andactivated the H-1B.
- H-1B cap-exemptemployers can file for H-1Bs at any time. An H-B cap-exempt employer is (1) a University; or (2) a non-profit thatis related to a University, such as a University Hospital; or (3) A Non-Profitresearch organization; or (4) A Non-Profit government research organization.
- Nationals of thesecountries have alternative visa categories that are similar to the H-1B, butare not subject to the H-1B cap: Canada, Mexico, Australia, Chile, andSingapore. If you hold a passport fromany of these countries you can seek a visa such as a TN-1, E-3, or H-1B1.
- OPT for F-1 Students. The F-1 rules liberally allow students towork in the US. Many students can nowwork for 24 month, after their graduation from a US college.
- Green Card filingscan often be done quickly. Allcategories except India EB-2, EB-3, China EB-2, EB-3 and Philippine EB-3 havevery favorable processing times. Most applicantswho qualify for categories other than these should expect their green cards in 12-18months.
- The L-1 visa (MultinationalExecutive, Managers, and Specialized Knowledge workers), the O-1 (ExtraordinaryAbility) and the E-1/E-2 (Treaty Trader and Treat Investor) offer some optionsfor high level and critical employees.
NEW USCIS MEMO: PORTING YOUR I-485 UNDER AC21
March 28, 2016
On March 18, 2016 the USCIS issuednew guidance regarding when a foreign national can port his/her I-485. Under the American Competitiveness in theTwenty-First Century Act (AC21) a foreign national can change his/her employeror job during the green card process once the I-485 has been pending for 180day or more.
When changing positions, the greencard applicant and their new employer, must file a letter with the USCISconfirming the new employer is taking over the green card case, agrees to paythe prevailing wage, and that the new position is the same or similar to theposition described in the green card application.
The USCIS will consider thetotality of the circumstances when determining if the green card job and thenew job are the same or similar. Specifically,the March 18 memo describes how Immigration Officers can review the occupationcodes assigned to both jobs by the Department of Labor when determining if thetwo jobs are the same or similar.
Evidence that the positions are thesame or similar can include:
- The job duties ofboth positions;
- The skills,expertise, education, training, licenses or certifications specificallyrequired to perform each job;
- The wages offeredfor each job; and
- Any othermaterial and credible evidence relevant to the determination.
Green card applicants can also porttheir I-485s when, in their new position, they are primarily responsible formanaging the same or similar function of their original job. For example, if a PT is promoted to Senior PTand supervises other PTs and PTAs. It isalso acceptable for the applicant to manage workers in a different occupationif the change in position is a normal career progression. For instance, if an OT is promoted to RehabManager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs,and others.
LAST CHANCE FOR 2016 H-1Bs
March 22, 2016
The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Thursday April 7, 2015. Below are some key points to keep in mind about this year’s H-1B cap:
-The USCIS makes no accommodation for delays caused by couriers. Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 1, which is the first day that H-1B petitions are accepted.
-Premium Processing Service (PPS) may not start until May 11, 2016, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.
-Last year it was until June before most H-1B lottery winners and losers found out about the outcome of their lottery selection.
-Last year it was until June before most H-1B lottery winners and losers found out about the outcome of their lottery selection.
HISTORICAL H-1B USAGE AND AN EDUCATED GUESS ON HOW MANY WILL BE FILED THIS YEAR
March 17, 2016
This year’s H-1Bfiling date of April 1, 2016 is coming fast. MU Law predicts thatH-1B petitioners certainly will file in excess of 200,000 petitions during theH-1B cap window of April 1-7, 2016. Last year’s record filingtotal of 233,000 will likely be exceeded. This estimate is based on conversation with clients,other employment-based immigration attorneys, and economictrends, such as the tiny unemployment rate inIT.
When the USCIS receives more H-1B petitions than slots availableit 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 slotsavailable.
If you are considering filing an H-1B cap-subject petition, MU Lawurges you to begin that process now.
Many healthcare professions ordinarily qualify for H-1B status,including Physical Therapists,Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.
International workers who are working in the U.S. on an H-1B visawith another cap-subject employer are not subject to H-1B cap. These cases arecommonly referred to as “H-1B transfer” cases and may be filed at any timethroughout the year.
Employees that need a "cap-subject" H-1B include:
* International students working on an EAD card underan OPT or CPT program after having attendeda U.S. school
* International employees working on a TN may need an H-1B filedfor them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g.H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees 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 (expected) |
OPT STEM EXTENSIONS NOW 24 MONTHS
March 14, 2016
On March 11, 2016 the USCIS published therules of a new, expanded STEM Extension OPT program. The new STEM Extension will go into effectTuesday, May 10, 2016. Among other changes,the program extends the length of the STEM Extension from 17 months to 24months.
STEM OPT Extensions are available to studentscompleting a degree in the science, technology, engineering, or mathematicsfields at US colleges or universities in F-1 status. A list of degrees eligible for STEMExtensions is available on the ImmigrationCustoms and Enforcement website.
In August 2015, the US District Court judgeruled that the USCIS STEM OPT Extension program was invalid because the USCIShad not followed the proper procedure when creating the STEM Extension program in2008. The federal judge allowed the USCIS time to re-create the programusing the proper procedure.
The USCIS has now re-created the STEMExtension program using the proper procedure and has extended the length of theSTEM Extension from 17 months to 24 months. The new STEM Extension rules also include the following:
· Employers participating in the STEM Extension program mustincorporate a formal training program that includes concrete learningobjectives with proper oversight.
· All STEM employers taking part in the program must alsoparticipate in e-verify.
· Students must work at least 20 hours per week per employer toqualify for STEM Extensions.
· Students are now permitted a total of 150 days aggregateunemployment while on OPT. Students continueto be permitted 90 days aggregate of unemployment during the initial period ofOPT. Students are now permitted anadditional 60 days of unemployment during the STEM OPT Extension period.
The Immigration Service has also created a STEM OPT Hub websitewhich includes resources for schools, students, and employers to assist in thetransition from the old STEM OPT program to the new STEM OPT program.
APRIL 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS
March 9, 2016
The Department of State has just issued the April 2016 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2016.
April 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 | 01SEP12 | 08NOV08 | C | C |
| 3rd | 15FEB16 | 15AUG13 | 08AUG04 | 15FEB16 | 01MAY08 |
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 remains positive, gaining 6 more weeks this month. These dates continue to be very favorable. We expect that All Other dates will continue to be positive for the foreseeable future.
China: EB-2 progressed by one month. EB-3 has progressed by about two years in just the last few months. This is great news for this category. EB-2 continues to lag behind EB-3. The DOS expects the EB-2 and EB-3 to re-balance at some point in the future.
India: EB-2 moved ahead about 3 weeks to November 2008. Six months ago it was 01MAY05. This represents a three-and one half year movement in just six months. This trend may continue. EB-3 moved three weeks. Our sense is that EB3 will only move by weeks in the forthcoming months.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead almost two 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 this spring or early summer.
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.
IS DONALD TRUMP FOR OR AGAINST THE H-1B ?
March 8, 2016
Thiswas first posted on the AAIHRblog.
The H-1B is the mainUS professional visa. H-1B visa demandfollows the US unemployment rate. When the US unemployment rate is high and manyUS workers are out of work, H-1B demand is low. When the US unemployment is low and many US workers are employed, H-1Bdemand is high.
Last year 232,000H-1B petitions were field on the first and only day of the H-1B capwindow. This resulted in an H-1B lottery, wherebyUSCIS rejected 64% of otherwise approvable H-1B petitions. On the other hand, at the height of the USrecession in 2010 it took about300 days for the H-1B cap to reach the statutory limit of 85,000.
The tech industryis the largest user of H-1B visas. Stories of H-1B abuse plague the industry. Notably Disneyhas been sued by American workers who claim to have been forced to trainthe H-1B replacements.
The healthcareindustry uses H-1B visas too, although at much smaller rates that tech in spiteof the fact that the shortagesof US labor in these occupations are greater than in IT. Physical Therapists and Occupation Therapistsqualify for theH-1B. The US Department of Labor hasrepeatedly found that the importation of these Registered Nurses and PhysicalTherapists does not negatively impact the working conditions or salaries of USworkers.
With eachRepublican Presidential caucus or primary, DonaldTrump is inching closer to the Republican nomination. His positon on the H-1B visa appears to befluid. For months he has generally disfavoredany increase in visa quotas. Inparticular he has aimed his glare at the alleged abuses in the ITindustry.
It was newsworthythen at the Thursday March 3 debate when Trumpannounced, “I’m changing,” in response to a question about his H-1B position. After being pressed by moderator Megyn Kelly,Trump fleshed out his new position, “I'm softening the position because we haveto have talented people in this country." This statement appeared to indicate the Trump would be in favoring ofallowing foreign-born US college graduates a path to work authorization.
The “softening” ofhis stance is not without controversy. In response, it appears that Trumpmay now have dialed back his “softening” and is now staking a middle position. Shortlyafter the debate, he reiterated his promise to end “abuse” in the H-1B system.
Perhaps Trump isplaying politics. One view is that Trumpmay think that he has the Republican nomination in hand and is therefore tackingtoward the center. This is astrategy that Republicans have used for a generation, ever since it was famouslyexecuted by then-candidate Richard Nixon.
A move to thecenter may mean that Trump would be willing to work with a healthcare industrythat has giantsupply shortages on the horizon and little hope to curing the shortageswith US labor.