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MAY 2015 VISA BULLETIN

The Department of State has just released the May 2015 Visa Bulletin. This is the eighth Visa Bulletin of the 2015 Fiscal Year.  

The big news was the massive retrogression of the Philippines EB-3.  This was completely unexpected.  MU Law believes that the Philippine EB-3 retrogression is a temporary situation that should correct itself in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.
The news was much better for the other categories.  India EB-2 has progressed to April 15, 2008, although India EB-3 only moved up one week to January 15, 2004.  All Other EB-3 moved into January 2015, which is also the date for Mexico’s EB-3.
China EB-2 improved to June 1, 2012 and EB-3 is now at May 1, 2011.  Both of these dates continue to progress positively.

Employment- Based
All Other
 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JUN12 15APR08 C C
3rd 01JAN15 01MAY11 15JAN04 01JAN15 01JUL07

VISA BULLETIN: PHILIPPINES EB-3 RETROGRESSED TO 2007: WHAT DOES THIS MEAN?

The May2015 Visa Bulletin, released April 13, 2015, contained a major surprise forPhilippines EB-3.  That visa number wasretrogressed to July 2007.  While thiswas unwelcome news, MU Law has checked with several sources and it is our senseis that this retrogression is a temporary blip in immigrant visa processing forPhilippines EB-3 applicants.  Because thereare very few Philippine EB-3 applications between 2009-2013, MU Law believesthat the Philippines EB-3 date will return to at least 2014, although this maynot happen until Fiscal Year 2016 begins in October 2015.
Philippine EB-3 applicantshave claimed many older priority dates from the high demand era of 2007-2009.  The Department of State had progressed the PhilippineEB-3 number over the last year in an effort to spur these older applicants intofiling their immigrant visa applications. The retrogression is recognition that this effort to spur olderimmigrant visa applicants has worked.  TheDOS now has had to tap on the breaks in order to process these older immigrantvisa applications. 
MU Law expects thatthe Philippines EB-3 number will remain in 2007 for the June 2015 VisaBulletin.  Because July is the start ofthe fourth and final fiscal quarter, the July 2015 Visa Bulletin may include aprogression of the Philippine EB-3 date if overall demand for immigrant visasis low.  It is common for the fourthfiscal quarter to include dramatic improvements in visa bulletin dates.  For example, the Philippines EB-3 number advancedfrom November 07 (May 2014 Visa Bulletin) to January 09 (July 2014 VisaBulletin) to April 2011 (September 2014 Visa Bulletin).
With the start ofthe next fiscal year (FY2016) in October 2015, the DOS should progress the PhilippineEB-3 date to 2014.  The DOS will thensteadily increase the date throughout FY2016, perhaps even making the PhilippinesEB-3 date current early in FY2016.

H-1B CAP REACHED AT 233,000

U.S. Citizenship and Immigration Services (USCIS) hasjust announced that it has received nearly233,000 H-1B petitions during the April 1-7 filing period.  This figure includes both regular H-1Bcap-subject petitions and H-1B petitions filed for the advanced degreeexemption.  This is the largestnumber of H-1B cap-subject petitions ever received.  About 36% of the H-1Bs will be accepted and 64%will be returned. 
Earlier today, USCIS used a computer-generated random selectionprocess, or “H-1B lottery,” to select enough petitions to meet the 65,000general-category cap and the 20,000 cap under the advanced degree exemption.USCIS will reject and return all unselected petitions with their filing fees,unless the petition is found to be a duplicate filing. 
It is expected that it will take until mid-May before the H-1B lotterywinners and losers are notified.  USCISwill begin premium processing for H-1B cap cases no later than May 11,2015. 

NEW H-1B NOW REQUIRED WHEN AN H-1B WORKER CHANGES LOCATION

In a dramatic change ignoring 20years of past precedent, the
USCIS’ Administrative AppealsOffice has decided that a new H-1B
petition must be filed every time anH-1B employee changes worksites, if
the new worksite is outside of theoriginal metropolitan area.
Effective immediately all MU Lawclient-employers must file new or amended
H-1B petitions to protect these H-1Bworkers.  This will dramatically and
negatively change the process formany H-1B employers, especially those
employers in the staffing andconsulting industries.  These industries
should expect to spend additionaltime and cost preparing and filing
previously unnecessary H-1Bamendment petitions.
The AAO decision is titled, Matter of Simeio Solutions, LLC.

USCIS TO ALLOW DUAL INTENT, 240 WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

The USCIS has proposedregulations that will allow H-1B1, CW-1, and E-3 visa holders to have dualintent.  The proposed regulation willalso grant extended work authorization to these visa status holders who timelyfile their visa status extension petitions. These changes will bring these three categories into harmony with similaremployment-based visa status programs, such as the H-1B and the L-1.
Allowing dualintent will remove an unnecessary legal headache when these visa status holdersapply for permanent residency. Currently, H-1B1, CW-1 and E-3 visa status holders must be extremelycareful when preparing their green card petitions or risk running afoul of theimmigrant intent rule.  Strictly speaking,these visa status holders cannot intend to file for US Permanent Residency.
Granting extendedwork authorization is also a welcome for these visa status holders.  Under the current interpretation theseworkers were forced to stop working unless their visa status extension wasapproved prior to the expiration of the initial visa status.  When the new rule is finalized, those in H-1B1,CW-1, and E-3 visa status will be allowed to work during the pendency of theirvisa status extension petition, even if the extension petition is not approved beforethe expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).
These visacategories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status forSingaporean and Chilean nationals.  TheE-3 functions similarly for Australian nationals.  These visas were approved by Congress whentrade deals were struck with these three countries.  The advantage of these visas is that they arenot subject to the H-1B cap.  There arequotas for these categories, although none of the quotas have veer beenreached.
The CW-1is transitional visa used for foreign nationals seeking to enter the Commonwealthof the Northern Marianas Islands.  TheCW-1 visa was set to sunset in 2014, but recentlegislation extends the transitional visa until December 31, 2019.
Healthcare workerswho work in occupations that require at least a Bachelor degree may qualify forthese visas.  Typically we see thesevisas used by Physical Therapists, Occupational Therapists, Doctors,Pharmacists, and Speech Language Pathologists.

CGFNS LAUNCHES E-COACH

One of internationally-trainedPhysical Therapists biggest headaches is equating their foreign college degreesto US college degrees.  With the aim ofcuring this headache, CGFNS has recently launched e-Coach Learning Service.   
The new programhelps internationally educated health professionals by providing the resourcesnecessary to help meet the requirements as specified in the assessment tool by outliningthe courses needed to remediate the educational deficiencies identified ontheir Coursework Tool Evaluation and Summary Statement.
Coursework Toolsinclude the Federation of State Boards of Physical Therapy (FSBPT) CourseworkTool for Foreign-Educated Physical Therapists and Physical Therapist Assistants(CWT) and the CGFNS Education Comparability Tool (ECT).
The service is availablethrough CGFNS’ webpage.

SENATE BUDGET BILL PASSES WITHOUT IMMIGRATION AMENDMENTS

Senators andCongressmen have a long history of attaching pet amendments to budget and fundingbills.  They know that these bills are “mustpass” legislation, meaning that Congress will certainly pass a budget or elsethe entire government would shut down. Since budget and funding bills are must pass, prized amendments getapproved without going through the usual route, working their way through subcommitteesand full committees.  This year severalodd amendments were offered.
Sen. Hatch (R-UT) offeredan amendment that sought to allow the conference committee to raise the H-1Bcap, increase STEM visas, raise the green card cap, and increase the H-1Bfee.  Sen. Grassley (R-IA) sought the exact opposite.  He hoped to restrict H-1B usage.  Neither amendment was successful. 

H-1B CAP NOTES: PREMIUM PROCESSING, NUMBER OF FILINGS, ETC.

The H-1B caprequires that all H-1B petitions are received at the USCIS’ California ServiceCenter or Vermont Service Center by Tuesday April 7, 2015.  Below are some key points to keep in mindabout this year’s H-1B cap:
-The USCIS makes noaccommodation for delays caused by couriers. Accordingly, MU Law will file the vast majority of its H-1B petitions onMarch 31 for delivery by April 1, which is the first day that H-1B petitionsare accepted.
-Premium ProcessingService (PPS) maynot start until May 11, 2015, although the USCIS could start PPS earlier,depending on the volume of petitions that are received.  Last year PPSbegan on April 28.
-The USCIS expectsthat more H-1B petitions will be received this year than last year.  At the recent AILAManila chapter conference, a USCIS official said that he expected more than200,000 H-1B cap-subject filings.  Therewere 172,500cap-subject H-1Bs in 2014 (FY 2015).

-Last year it wasmid-May before most H-1B lottery winners and losers found out about the outcomeof their lottery selection.  Since thevolume is expected to be greater in 2015, it may not be until June untillottery winners and losers know their outcome.

SEN. GRASSLEY HATES THE H-1B? NO, HE LOVES THE H-1B!

The Senate is controlledby Republicans who are odds at how to handle the real and perceived problemswith the H-1B visa.  One group ofSenators, led by Sen. Orin Hatch (R-UT), recognizes the obvious: that the H-1Bvisa quota is an enormous hindrance to the US economy.  Sen.Hatch’s solution is to increase the quota while maintaining protections forUS workers.  Sen. Hatch’s bill, theI-Squared bill, has support from Senators in both parties, with co-sponsorshipfromeleven different Senators.  It is therare piece of legislation that has support from a diverse group of Senators. 

This sensible coalition recognizesthat an increased H-1B visa cap is necessary. There is noreal evidence that the H-1B drives down US workers’ wages.  

The other side of thedebate is spearheaded by Sen. Grassley (R-IA), with Sen. Jeff Sessions (R-AL) riding alongside.  Neither Senator is actually interested ingetting legislation passed, as evidenced by the fact that neither has actuallyintroduced any legislation.  They areonly interested in rabble rousing.  Earlierthis week, they held a hearing on the H-1B visa, which amounted tonothing. 

Sen. Grassley’s plan seemsto be able to force amendments to the I-Squared, whose support is growing.  He has done this many times in the past.  These amendments will only increase the regulatoryand legislative headaches that lawful staffing companies already face.  The companies that take advantage of looseenforcement will continue to do so.  

It is in the Senator’s best interest to keep the H-1B bill alive and well.  How else can he tell the protectionists how bad it is?  
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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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