DECEMBER 2014 VISA BULLETIN
November 10, 2014
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?
November 6, 2014
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
November 4, 2014
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
October 29, 2014
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
October 23, 2014
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.
VISA BULLETIN PROJECTIONS FOR THE NEXT FEW MONTHS
October 22, 2014
AILAhas again recently dialoged with the Department of State’s CharlieOppenheim, who is the DOS’ chief for producing the Visa Bulletin. MU Law has spoken with Mr. Oppenheim severaltimes in the past and have always found that his projections are well thoughtout and very accurate.
Here are hisprojections based on his recent conversation with AILA:
EB-2 India
The November2014 Visa Bulletin retrogressed India EB-2 to February 2005, which was 4years worse than the October2014 Visa Bulletin. Unfortunately,the India EB-2 date is expected to stay in 2005 for the foreseeable future.
EB-3 India
This category shouldsee continued slow movement of about one or two weeks for every Visa Bulletin.
EB-3 Philippines
The EB-3Philippine’s date is expected to remain the same as the Worldwide EB-3 date forthe next several months. These dateswill remain the same unless the demand for the Philippines EB-3 spikes infuture months.
EB-2 China
This categoryshould progress three to five weeks for every monthly Visa Bulletin.
EB-3 China
EB-3 China shouldsee rapid promotion of dates in the forthcoming months.
FCCPT PILOTING EXPEDITED SERVICE
October 17, 2014
The ForeignCredentialing Commission on Physical Therapy is launching a pilot program,offering expeditedcompletion of reviews. The ExpeditedService program guarantees completion within six weeks. The reviews have traditionally taken eightweeks. An Expedited Service can berequested at any time prior to the start of a review and up to two weeks afterthe start of the review.
NOVEMBER 2014 VISA BULLETIN
October 10, 2014
The Department of State has just released the November 2014 Visa Bulletin. This is the second Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.
The Philippines EB-3 yet has again had a substantial progression. It is now at June 2012, which is a five year jump since March 2014. It remains consistent with the All Other (ROW) EB-3 date.
India EB-2 had a dramatic retrogression, moving from May 2009 all the way back to February 2005. India EB-3 remains stuck in November 2003.
The Chinese EB-3 number continued to move dramatically and inconsistently. It is now at January 2010 and is more favorable than China EB-3.
EMPLOYMENT-based categories (potential monthly movement)
Employment First: Current
Employment Second:
Worldwide: Current
China: Three to five weeks
India: No forward movement
China: Three to five weeks
India: No forward movement
Employment Third:
Worldwide: Continued rapid forward movement for the next several months. After such rapid advance of the cut-off date applicant demand for number use, particularly for adjustment of status cases, is expected to increase significantly. Once such demand begins to materialize at a greater rate it will impact this cut-off date situation.
China: Rapid forward movement. Such movement is likely to result in increased demand which may require "corrective" action possibly as early as February.
India: Little if any movement
Mexico: Will remain at the worldwide date
Philippines: Will remain at the worldwide date. Increased demand may require "corrective" action at some point later in the fiscal year.
Mexico: Will remain at the worldwide date
Philippines: Will remain at the worldwide date. Increased demand may require "corrective" action at some point later in the fiscal year.
| Employment- Based | All Other | CHINA - mainland born | INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C |
| 2nd | C | 08DEC09 | 15FEB05 | C | C |
| 3rd | 01JUN12 | 01JAN10 | 22NOV03 | 01JUN12 | 01JUN12 |
FSBPT ELIMINATING DISTINCTION BETWEEN GENERAL EDUCATION AND PROFESSIONAL EDUCATION
October 9, 2014
Starting November 1, 2014, the Federationof State Boards of Physical Therapy (FSBPT) will eliminate the distinctionbetween General Education and Professional Education. This is a modification of the InterpretiveGuidelines for the FSBPT Coursework Tool (CWT).
The Coursework Tool accepted by allmember boards to evaluate whether a foreign educated PT or PTA’s education issubstantially equivalent to a US PT or PTA education.
FSBPT’s Board issued a comprehensivenotice letting the public know that the Board “did not approve this changelightly”. The Board explained that theelimination of the distinction had been considered for several years and hadbeen recommended by the FSBPT’s Foreign Educated Standards Committee. Notably, within US education and within thecriteria developed by the Commissionon Accreditation in Physical Therapy Education (CAPTE), there is no suchterm as general education. The newpolicy does not to eliminate the required courses within General Education, butit does eliminate the artificial distinction between Professional Education andGeneral Education.
For foreign-educated PTs, this changecould be helpful. Presently the CWTrequires 150 total credits, which is comparable to what is needed for a USpost-graduate degree. In manyinternational PT programs these general courses are embedded into the PTprofessional courses, not completed ahead of entry. The current model would notallow the evaluator to give credit as a general course since it was taken aspart of their professional coursework.
Previously, some foreign-educated PTseducation was found to be incomparable to a US-educated because of thedistinction between Professional Education and General Education. This resulted in some foreign-educated PTshaving to take “make-up” classes, usually from CLEP. As the Board correctly points out, “to ask an applicant to complete aprerequisite after completing professional curriculum seems counterintuitive,and sets up an unreasonable barrier to licensure.”