H-1B CAP NOTES: PREMIUM PROCESSING, NUMBER OF FILINGS, ETC.
March 24, 2015
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!
March 19, 2015
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.
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?
HISTORICAL H-1B USAGE
March 16, 2015
This year’s H-1Bfiling date of April 1, 2015 is coming fast. MU Law predicts that the USCIS may see 200,000H-1Bs filed this year, more than double the Congressional cap of 85,000. When the USCIS receives more H-1B petitionsthan slots available it holds an “H-1B lottery”. Last year, the USCISheld an H-1B lottery because it received over twice as many H-1B petitions asslots available..
If you areconsidering filing an H-1B cap-subject petition, MU Law urges you to begin thatprocess now.
Many healthcareprofessions ordinarily qualify for H-1B status, including Physical Therapists,OccupationalTherapists, SpeechLanguage Therapists, and some Registered Nursing positions.
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.
Employees that needa "cap-subject" H-1B include:
* Internationalstudents working on an EAD card under an OPT or CPT programafter having attended a U.S. school
* Internationalemployees working on a TN may need an H-1B filed for them in order for them topursue a permanent residency (green card) case
* Prospectiveinternational employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers witha cap exempt organization
* Prospectiveinternational 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 3, 2007 |
H-1B 2008 (FY 2009) | 85,000 | April 7, 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 5, 2013 |
H-1B 2014 (FY 2015) | 85,000 | April 1, 2014 |
H-1B 2015 (FY 2016) | 85,000 | April 1, 2015 (expected) |
APRIL 2015 VISA BULLETIN
March 11, 2015
The Department of State has just released the April 2015 Visa Bulletin. This is the seventh Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014. There is once again very positive news for many immigrant visa categories.
The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date. These are all now at October 2014, which is the closest to current they have been in many years. This is yet another large progression in dates.
India EB-2 climbed forward steadily as well. It has moved to September 2007, representing a 2 and a half year increase in the last three months.
Chinese numbers righted themselves. For two years the Chinese EB-3 has been more favorable than Chinese EB-2. With this Visa Bulletin, Chinese EB-2 is now the better date.
The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date. These are all now at October 2014, which is the closest to current they have been in many years. This is yet another large progression in dates.
India EB-2 climbed forward steadily as well. It has moved to September 2007, representing a 2 and a half year increase in the last three months.
Chinese numbers righted themselves. For two years the Chinese EB-3 has been more favorable than Chinese EB-2. With this Visa Bulletin, Chinese EB-2 is now the better date.
| Employment- Based | All Chargeability Areas Except Those Listed | CHINA - mainland born | INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C |
| 2nd | C | 01APR11 | 01SEP07 | C | C |
| 3rd | 01OCT14 | 01JAN11 | 08JAN04 | 01OCT14 | 01OCT14 |
USCIS H-1 NURSE MEMO REISSUED: ANOTHER MISSED OPPORTUNITY
March 4, 2015
In July 2014, theUSCIS published and released a Memorandum aimed at clarifying the USCIS’position on the approvability of H-1B Registered Nurses. The Memorandum updated the long-standing 2002Johnny Williams USCIS Memorandum on the same subject. The July 2014 Memorandum did not provide anysubstantive guidance beyond than the 2002 Williams Memorandum. It paid lip service to the idea that USCISofficers should remember that, “there are some situations, however, where thepetitioner may be able to show that a nursing position qualifies as a specialtyoccupation”.
Oddly, the July2014 Memorandum disappeared from the USCIS’ website shortly afterpublication. Some practitioners hopedthat that USCIS had reconsidered the Memorandum and would issue a Memorandumthat provided concrete instruction and examples.
Unfortunately, theUSCIS has finally republishedthe Memorandum. It is identical tothe July 2014 Memorandum, except the date of the Memorandum is now February 18,2015.
An article that MULaw posted in July 2014 includes a link to the July 2014 Memorandum and ananalysis of the missed opportunity. Rather than restate the arguments that we made in that article, wewill just point you there.
H-4 EAD FAQ
March 2, 2015
Starting May 26, 2105,certain H-4 spouses of H-1B holders can file for an Employment AuthorizationDocument (EAD). The fullregulation has just been published.
Musillo Unkenholt has hadmany questions from clients and friends of the firm. We have published these in this FAQ.
CanI file before May 26, 2015?
No. The USCIS will not accept EAD applicationsuntil May 26, 2015.
Howlong will it take the USCIS to process the EAD Application?
Traditionally EADApplications take 90-120 days until approval.
CanI work upon the filing of the EAD Application?
No. The EAD must be approved?
Whoqualifies for the new H-4 EAD card?
Certain H-4 spouses mayfile for the new H-4 EAD. Children whohold H-4 status are ineligible for the EAD.
WhichH-4 spouses may file for an EAD?
In order to decide if youqualify for the H-4, we must look to the underlying H-1B status holder. The USCIS elected to apply the rule first setforth in Section106 of AC21. The H-1B worker must either:
A. Hold an approved I-140,Petition for Alien Worker. The approvedI-140 does not need to be from his present employer; or
B. Have a priority datethat is at least one year old. Apriority date can be established by the filing of a PERM Application or a FormI-140.
Mayan H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B)one year has passed since the filing of a PERM or I-140?
No. The USCIS looks to the H-1B worker to meet Aor B, above. It is irrelevant if the H-4meets A or B.
Arethere any limitations on the work that I can perform on an H-4 EAD? For instance, is there a prevailing wage? Am I limited only to certain types of jobs?
No. There are no such limitations. You can work for any employer, at any rate(above minimum wage), and in any occupation.
Whatshould I do if I want to file an H-4 EAD?
EAD Applications do notrequire an attorney’s assistance, although many people find it helpful to havean attorney assist in the process. Ifyou would like MU Law to help, please contactus.
H-4 EAD RULE IS EFFECTIVE MAY 26
February 24, 2015
USCIS hasjust announced that the long-awaitedH-4 EAD rule will go into effect on May 26, 2015.
Under the new H-4 EAD rule, the H-4spouse may obtain an EAD card in two instances. (1) Either the principal H-1B worker has tohave had a PERM Application pending for at least one year or (2) the principal H-1Bworker has to have an approved I-140.
H-4 spouses who meet one of the twoconditions may file an I-765, Application for Employment Authorization. Ordinarily, I-765 Applications are approved in90-120 days. Accordingly, H-4 spouseswho qualify should be able to begin working in September 2015.
NON-IMMIGRANT MAINTENANCE OF STATUS: F-1 & PERIODS OF AUTHORIZED EMPLOYMENT
February 18, 2015
Generally, all persons in a non-immigrantclassification are required to maintain their immigration status for theduration of their stay in the U.S. This issue is of particular importance as weapproach the impending 2016 H-1B CAP season. A prospective employee in a non-immigrantstatus must demonstrate compliance and maintain status at the time of the H-1Bfiling. Failure to maintain the status can cause a denial in the prospectiveemployee’s H-1B petition.
More recently, the USCIS hasnarrowly focused on F-1 students and particularly whether the studentmaintained status during any period(s) of authorized employment. The authorizedperiods of employment may include any work performed while engaged in OptionalPractical Training (OPT) or Curricular Practical Training (CPT).
There are 4 primary characteristicsthat serve as evidence of the student’s maintenance of status while engaged inOPT/CPT:
- The student was enrolled full-timeeach semester;
- The student was engaged infull-time employment while on OPT/CPT (or part-time work if so designated onthe SEVIS Form I-20);
- The CPT was an integral part of thestudent’s degree program; and
- The student engaged in CPT work aftercompleting 1 year of academic studies.
In their discretion, the USCIS canrequest for additional clarification of the student’s academic and employmenthistory. And ultimately the agency can issue a denial of the H-1B petition whenthe evidence provided deviates from the above mentioned characteristics.
PREDICTING THE VISA BULLETIN FOR 2015
February 15, 2015
AILA regularlychecks in with Charlie Oppenheim, who is the Department of State’s guru on VisaBulletin numbers. Their most recent CheckIn with Charlie contains projections for 2015. Here are his projections for several majorvisa categories.
India EB-2. This category had stagnated for a long timeuntil the recent March 2015 Visa Bulletin that progressed the date by 16months, to January 2007. Charlie expectsthat India EB-2 will continue to progress at a very steady rate in the upcomingmonths.
Philippines EB-3. Demand for Philippine EB-3 remains lower thanexpected, which is good news for those in this category. He does not see the demand on the horizon,which leads to his projection that Philippine EB-3 should run parallel toWorldwide EB-3. He cautions that if thenursing demand returns, a correction may be required for this category.
Worldwide EB-3. The Worldwide EB-3 hasadvanced in the past few months in order to spur demand. If the demand continues to stay soft, theprogressions will continue. If thedemand picks up, the Worldwide EB-3 number will slow down.
China EB-2 and EB-3. Low demand for Chinese family-based visas hasbuoyed the China EB-2 and EB-3 categories. The EB-2 continues to run behind the EB-3 category, although the gapbetween the two appears to be tightening.