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US WORKERS SUE TO ELIMINATE OPT

The Washington Alliance of Technology Workers (WashTech),a collective bargaining organization that represents science, technology,engineering, and mathematics (STEM) workers, has sued the U.S. Department ofHomeland Security seeking to eliminate the Optional Practical Training (OPT)program.  The OPT program allows foreignnationals on an F-1 student visa to engage in twelve months of employmentduring and following a full-time course load in a U.S. educational institution.  Certain STEM applicants can extend their OPTstatus an additional 17 months, pursuant to an April 2008 instituted by PresidentGeorge W. Bush’s administration.  The OPT is often seen as a bridge to the H-1B program.

WashTech arguesthat the OPT program causes actual harm to US technology workers because USemployers hire these OPT workers when the employers could be hiring these USworkers.  The WashTech plaintiffs have standing to make their case.  The court’s finding thatstanding exists means that the case can go forward, although the court’s decisiondoes not speak to the likelihood of success when the substantive case is argued.

PRESIDENT OBAMA TAKES EXECUTIVE ACTION

Last nightPresident Obama announced the Immigration Accountability Executive Actions(IAEA), which is a series of wide-ranging changes to immigration policy.  Most of the major changes are centered on theundocumented community.  However, somechanges will impact the business community. At this point, only summary policies have been released by the administration. Over the next few days and weeks, moredetails will emerge.  None of the changesare expected to take effect until after the New Year
MU Law will beholding a client teleconference on Tuesday December 2, 2014 at 2PM ET / 11AM PTfor all clients and friends of the firm. If you or anyone in your organization would like to dial-in to theteleconference, please contact Annalisa Smith (Annalisa@muimmigration.com) toregister.
Here are the keycomponents of the IAEA, with a focus on the policies that will impact clientsand friends of MU Law:
1. Allowing earlierfiling of the I-485, Adjustment of Status: Green card applicants will no longerhave to wait until their priority date is current in order to file their I-485,Adjustment of Status. This is especially helpful for India and China EB-2 applicantsand all EB-3 applicants in the US.

a. By allowing greencard applicants to file their I-485, Adjustment of Status much earlier in thegreen card process than under the current process, applicant’s spouses will beable to obtain work authorization (EAD cards) many years earlier than under thecurrent policy. 
b.  Once an I-485 ispending for 180 days, applicants are able to leave their green cardemployer-sponsor provided that they have found a “same or similar” position.  The President has also announced that theUSCIS will be providing guidance on the definition of “same or similar”.  The forthcoming guidance is expected to bemore liberal than the current interpretation.
2.  H-4 WorkAuthorization.  This long-proposedrule will allow spouses of H-1B workers to obtain work authorization.  Earlier this summer, the USCIS floated aproposal that limited the EAD to H-4 spouses whose H-1B workers have been inthe green card process for at least one year. A final regulation is expected in December or January.

3. PERM.  The Department of Labor is expected to “modernize”the PERM process, including a potential “harmless error” provision.

4. Entrepreneurs.  The administration will be “clarifying” rulesregarding using the national interest waiver and parole processes for entrepreneurs. It is expected that these rules will be liberalizedto encourage investment and entrepreneurs.

5. L-1B Guidance.  The L-1B visa system is riddled with inconsistentdecision-making.  The USCIS will be offeringguidance to help on this issue.

6. OPT.  Optional Practical Training will be expanded.

7. Deferred Actionexpansion.  This provision is the focusof much of the media attention.  Some undocumentedand illegal people in the US will be able to gain temporary three year work authorizationand no longer be under the threat of deportation/removal. 

a. Deferred Action forParents (DAP): Parents of U.S. citizens and lawful permanent residents (of anyage) who have been continuously present since January 1, 2010, and who passbackground checks and pay back taxes; and

b.  DACA Expansion: Theage cap on DACA will be removed and the date when continuous presence must havestarted will be changed from June 15, 2007 to January 1, 2010. 

CGFNS TO OPERATE THE ALLIANCE FOR ETHICAL RECRUITMENT

The Alliance for Ethical Recruitmentwas formed in 2009 as a result of a funding grant from the MacArthurFoundation.  There always are perceivedrecruitment abuses in the international arena. Some of these perceptions are borne out of veryreal abusive behavior.  Some of theseperceptions are borne out of hysteriaand junk statistics. 
The Alliance has tried for severalyears to root out the former.  It hasstruggled to gain traction.  Despite the Alliance’sefforts, only four employers have endorsedthe Alliance Code of Ethical Recruitment, only one of which has joined sincethe pilot phase ended in 2010.  The AAIHR(of which MU Law is a member) also has a Code of Ethics, which has been moreaccepted by the industry. 
The Alliance is now about to shiftgears.  CGFNS, who have long been involvedin international nurse matters, will be operating the Alliance.  The Alliance will now be managed by MukulBakhshi, JD. 

The official launch of this newphase of the Alliance will take place at a reception in January at a locationin Washington, D.C.

NVC NO LONGER COLLECTING ORIGINAL CIVIL DOCUMENTS

The ConsularProcess route to a green card consists of three steps: (1) Filing and approvalof the I-140; (2) National Visa Center; and (3) Consular interview.  The middle stage, the NVC stage, consist ofcollection of fees for the processing of the Beneficiary and his or her family(often called “Fee Bills”) and the collection of a variety of civil documentation,such as birth, marriage, and police certificates.  In a break from the past, the NVC will nowonly collect photocopies of these civil documents.  The original civil documents should bebrought to the Consular Interview in the home country.   Applicants at designated electronicprocessing posts will continue to submit their documents via email.  This new policy iseffective as of November 12, 2014.
When the Consular Interviewis scheduled, NVC will instruct applicants to bring their original documents tothe interview for evaluation and final case processing.  Beneficiaries should note that OriginalAffidavit of Support forms will still be submitted to NVC for initial evaluation. Affidavits of support are typically notused in employment-based immigration cases. Affidavits of support are usually only used in family-based immigration.
By making thischange, NVC hopes that it will maintain the integrity of the immigrant visaprocess, reduce customer wait times, and improve the customer experienceoverall.

DECEMBER 2014 VISA BULLETIN

The Department ofState has just released the December 2014Visa Bulletin.  This is the third Visa Bulletin of the 2015 US FiscalYear, which began October 1, 2014.  
The PhilippinesEB-3 yet has again had a substantial progression.  It is now at November2012, which is more than a five year jump since March 2014.  It remainsconsistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.
India EB-2 remainedstuck at February 2005.  The India EB-2 date retrogressed by four yearsrecently and it does not appear  that any meaningful progression isimminent.  India EB-3 continued to move ahead at a snail’s pace.  Itis December 2003.
The Chinese EB-2and EB-3 number continued to move inconsistently.  China EB-3 remainsahead of China EB-2 which has been the case for much of the last two years.
Employment- Based
All Other
 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN10 15FEB05 C C
3rd 01NOV12 01JUN10 01DEC03 01NOV12 01NOV12

EXECUTIVE ACTION OR ALL TALK AND NO ACTION?

President Obamashowed noindication that he would back down from a pledge to take Executive Action onimmigration despite the Republican party’s big wins in Tuesday’selections.  He promised that he would takewhatever lawful action he could if the Congress does not pass meaningful immigrationlegislation during the November-December lame duck period.  

However, he gave no details about whether theExecutive Action would be limited to legalization of the undocumented or abroader action that might liberalize employment-based visa classes such asH-1Bs and employment-basedgreen cards.  A listof Executive Action options includes both options.
Meanwhile the TeaParty republicans threatened to take legal action if the President does anythingon immigration.  Republicans attempts atfiling a law suit against President Obama seems to be riddledwith problems.  Politico has reportedthat two different law firms have started and then declined to work on theRepublican’s law suit in the last two months.
The longer that thePresident dawdles on the Executive Action pledge, the more he feeds the memethat his Presidency is one of all talk and no action.  

FEDERAL COURT CONFIRMS GREATER MISSOURI H-1B DECISION

The Greater Missouri Medical Pro-Care Providers H-1B case has been winding its way through the court system since 2006.  The key facts are that an aggrieved H-1Bholder filed a Complaint with the Department of Labor alleging a multitude of H-1Bviolations.  The Department of Labor’s AdministrativeReview Board ultimately issued a Decisionin January 2014.  The ARB decision isone of the best written and comprehensive legal discussions of an H-1B employer’ssalary obligations that a practitioner will ever find. 
One of the keyholdings concerns the statute of limitations for an employer’s H-1B violations.  The ARB found that the DOL does not need tolimit its investigation to the single complaining H-1B employee.  The DOL may expand its investigation to allH-1B employees; however “if the H-1B violation underlying the claim occurred morethan 12 months before a complaint was filed, any remedies for that violationare barred.”  (Page 16, in theabove-linked decision). 
The ARB’s decisioncontained a dissent by Deputy Chief Administrate Appeals Judge E. Cooper Brown.  Judge Brown opined that the DOL’s investigativeauthority should be limited to the complaining H-1B employee.  If Judge Brown’s opinion had held court itwould have significantly changed long-standing DOL investigative practice. 
The plaintiff,Greater Missouri, sought federal review of the ARB decision hoping to convincethe federal court that Judge Brown’s dissent was the proper reading oflaw.  Last week, the federal court deniedthe Greater Missouri petition, probably ending the eight and a half yearsaga.

PRESIDENT OBAMA COULD EXPAND H-1B AND DOUBLE GREEN CARDS WITHIN THE NEXT TWO MONTHS

This November or December the Presidentmay expand the H-1B rules and double the number of employment-based green cards,through Executive Action.  Either wouldbe welcome to an American industry that cannot find US workers in low supply occupationssuch as healthcare and information technology.  The Executive Action will happen between the November4, 2014 and January 3, 2015.
Earlier this month the Presidenthinted that he will useExecutive Action to liberalize the H-1B program.  One method may be to finally enact rules thatextendwork authorization to spouses of H-1B workers.
Pundits have also said that thePresident couldeffectively double the number of employment-based green cards by changingthe way that employment-based green card are counted.  Doubling the number of employment-based greencards would make most employment-based green card categories current,eliminating retrogression.
The Executive Action doctrineallows Presidents to implement changes to the law, as long as those changes areinterpretations of established law and not the creation of new law.  There is a fine line between aninterpretation and the creation of law.
The President controversially took ExecutiveAction in June 2012 when he issued the Deferred Action for ChildhoodArrivals (DACA).  DACAallows certain people who came to the United States as children and meetseveral guidelines may request consideration of deferred action for a period oftwo years, subject to renewal.
The President originally plannedto use Executive Action this summer in other areas of immigration law.  He has postponed those plans until after ElectionDay in order to appease Democrats in tough districts. 

It is expected that the House of Representativeswill remain firmly in control of the Republicans.  The Senate, which is presently in control ofthe Democrats, will almostsurely flip to Republican control.  Thiswill give the Republicans control of both houses of Congress when the newCongress starts on January 3, 2015.  Forthis reason, the President is expected to act before the new Congress is sworninto office.

USCIS UNHELPFUL ON EB-2s FOR PHYSICAL THERAPISTS

The October 9, 2014USCIS Headquarters Question and Answersession with AILA included a lengthy discussion on the issue of EB-2s for PhysicalTherapists.  The discussion was unhelpfuland did nothing to make progress son this issue. 
This issue is thatthe USCIS refuses to acknowledge that the five year, 150+ credits Philippinedegree is equal to a US Master’s Degree in spite of incredible evidence.  The USCIS’ refusal to do so means that PhilippinePhysical Therapists must file for an EB-3. We have bloggedon this topic in great detail.
This recent USCISQ&A shows the USCIS’ obtuseness on the issue.  Instead of articulating a common standard,the USCIS says,
Ratherthan make a blanket statement regarding the merits of degrees evaluated by the FCCPTto be the equivalent of a first professional degree in physical therapy in theUnited States, USCIS will analyze the educational credentials of foreignworkers practicing physical therapy on a case by case basis with dueconsideration being given to all submitted materials as well as to othercredible resource material.
“Case by case basis”is legal code for “we have no standard.” It simply is not that difficult analysis.

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