NOVEMBER 2013 VISA BULLETIN
October 10, 2013
The Department of State has justreleased the November 2013Visa Bulletin. This is the second Visa Bulletin of the 2014 US FiscalYear, which began on October 1, 2013.
The All Other Countries EB-3 date jumped about three months from July 2010 to October 1, 2010. The Chinese EB-2 and EB-3 dates each progressed several months.
Here is the chart:
| November 2013 Visa Bulletin | ||||
|---|---|---|---|---|
| All Other Countries | China | India | Philippines | |
| EB-2 | Current | 08OCT08 | 15JUN08 | Current |
| EB-3 | 01OCT10 | 01OCT10 | 22SEP03 | 15DEC06 |
MANAGING LCA ISSUES DURING THE GOVERNMENT SHUTDOWN
October 9, 2013
The issues described in this MU Visa Advisor are complex and very much driven by the facts of your case. Please do not hesitate to contact MU Law if youhave any questions about these issues.
TheFederal Government Shutdown has caused the Department of Labor to furloughabout 80% of its workforce. As a resultthe DOL’s iCert System, which is the manner through which LCAs are filed, hasbeen turned off. It is impossible tofile LCAs, leading to many questions from H-1B employers.
Background: The LCA System
TheLabor Condition Application (LCA) is the centerpiece of the H-1B program. It serves two primary functions. First, it forces the H-1B employer to certifythat the wage that it is offering to pay the H-1B worker is not lower than similarUS workers. Second, the LCA includes amandatory mechanism whereby H-1B employers must notify potential US workers oftheir right to contact the Department of Labor (DOL) if they believe that theH-1B employer is engaging in prohibited behavior.
Thereare two ways that the LCA is utilized in the H-1B process. First, new H-1B petitions must be submittedwith an LCA that has been certified by the DOL. Second, if an employee is going to change worksites, the employer mustprovide new Notice to the workers at this new worksite. In some instance, the H-1B employer must filea new LCA with the DOL and wait the seven days for the DOL to certify the newLCA. In other instances, the H-1Bemployer must not only obtain a new certified LCA but must also file a newH-1B.
The Government Shutdown
Unfortunatelywith the governmentshutdown the DOL has shuttered the LCA system. It is impossible to file LCAs. The DOL has not given the public any guidanceon how to handle new H-1B petitions nor how to handle new situations where anew LCA is required.
Onaccount of the fact that LCAs cannot be filed, H-1B employees should not changeworksites in instances where a new LCA would normally be required. This is the safest approach. Once the government shutdown ends, H-1Bemployers can file an LCA and the employee can move once the new LCA iscertified and in place.
Onthe bright side there are some instances when a new LCA is not required.
- WhenH-1B workers change worksites, but the new worksite is still within the priorLCA metropolitan area, a new LCA is not required. An H-1B employer must still post notice atthe new worksite.
- TheLCA rules allow H-1B employees to work at new worksites when the new worksiteis peripatetic or very short-term. Forexample a new certified LCA is not required if an H-1B employee isattending meetings for a few days in a new location.
Ifbusiness needs demand that an H-1B must change worksites, then the H-1Bemployer must be aware that it may be technically violating law, although a legalargument could be made that compliance with the law was impossible on accountof the shutdown. Penalties can rangefrom $1,000 - $35,000 per violation. Debarmentfrom the H-1B program could also occur. Afterconsidering these potential penalties, an H-1B employer still feels compelledto move the H-1B worker, we urge that H-1B employers take all three of these additionalmeasures to mitigate risk:
· Makesure to post LCA posting. Even though wewould not be able to file an LCA, we would still be able to post Notice at thedestination worksite. We can prepare theNotice Posting for you.
· Filean LCA at the conclusion of the shutdown.
· Filean amended H-1B at the conclusion of the shutdown and the certification of thenew LCA.
WELCOME H-1B WORKERS
October 3, 2013
Lost amid the federal government shutdown was the fact that the new fiscal year began on October 1. With that date thousands of H-1B workers began their H-1B status.
Those who obtained H-1B visas via overseas US Consulates and Embassies were eligible to enter the US, generally after September 20. People in the US in other status -- e.g. F-1, Students; H-4, Derivative spouses -- had their nonimmigrant status change by operation of law on October 1.
H-1B employers are reminded to update their Form I-9s to reflect these employees new H-1B nonimmigrant status. The USCIS increasingly is auditing companies I-9 files and issuing fines to the non-complaint. (Although one piece of good news from the shutdown: DOL investigations have been suspended.)
US GOVERNMENT SHUTDOWN IMPACTS SOME IMMIGRATION SERVICES
October 1, 2013
Congress’failure to establish a budget for Fiscal Year 2014 (start date, October 1,2013) has an impact on some areas of immigration. If you have any questions about how the governmentshutdown may impact your petitions, please contact Musillo Unkenholt.
United States Citizenshipand Immigration Services: USCIS operations continue despite the FederalGovernment shutdown, because fee-for-service activities performed by USCIS arenot affected by a lapse in annual appropriated funding. H-1B, L-1, I-140, and I-485 petitions and applicationsare expected to continue processing with little impact as a result of thefederal government’s shutdown.
All USCIS offices worldwide are open for interviews andappointments as scheduled. E-Verify is an exception and is unavailable duringthe shutdown. For more information about how the shutdown is effecting E-Verifyplease visit www.dhs.gov/e-verify.
Department of Labor: Most DOL functions that impact immigration will stop workingas a result of the federal shutdown. TheDOLwill neither accept nor process any applications or related materials (suchas audit responses), it receives, including Labor Condition Applications,Applications for Prevailing Wage Determination, Applications for TemporaryEmployment Certification, or Applications for Permanent EmploymentCertification. The DOL’s web site, including the iCERT Visa Portal System and the PERM system, have become static andare unable to process any requests or allow authorized users to access theironline accounts.
Department of State: The Department will continue as many normal operations aspossible; operating status and available funding will need to be monitoredcontinuously and closely, and planning for a lapse in appropriations must becontinued. Visa issuance will be available in consulates that have adequatefunding to continue operating. Please contact our office to determine ifthe consulate you plan to attend will continue operating.
Customs and Border Patrol: Inspection and law enforcement are considered"essential personnel," though staffing may be more limited thanusual. The borders will be open, and CBP is unsure of how the shutdownwill affect the processing of applications filed at the border at this time.
State Agencies: State agencies, such as driver’s licenses and professional licenses(e.g. Registered Nurse, Physical and Occupational Therapy licenses), are notimpacted by the federal shutdown.
ALL IMMIGRANT VISAS HAVE BEEN USED FOR THIS FISCAL YEAR
September 26, 2013
AILAhas confirmed with the State Department that all of this fiscal year’simmigrant visas have been used. This isnormal in September. The US Fiscal Yearends on September 30.
USCIS will continueto process pending adjustment cases, and is able to submit visa number requestsfor all cases which are being finalized. The State Department will place requests in a“Pending Demand” file. Eligible caseswhich have been submitted to the State Department that are within the Octobercut-off dates will be automatically authorized effective October 1, 2013.
CHANGE IN POLICY FOR ONTARIO NURSES IN THE US
September 25, 2013
The below post was brought to myattention by Michigan attorney MarcTopoleski. Much of this post is taken directly from arecent email exchange between us.
Canadiannurse licensure in Ontario is governed by the College of Nurses of Ontario. The CNO has changedtheir policy for Non- Practising Ontario nurses, such as those who havemoved to the US.
Under thenew policy non-practicing Ontario nurses must convert their CNO membership to aregistration in the Non- Practising Class. This requires an annual fee. Anurse registered in the Non- Practising class cannot practice nursing inOntario, not even in a volunteer capacity. These nurses also have a second option. They can resign their CNO membership.
Onequestion that Marc and I have is whether this new policy will have any impacton Canadian nurses from Ontario at the time of their VisaScreen renewal. Neither of us has yet had a nurse in the Non-Practisingclass apply for a Visa Screen renewal.
Ouropinion is that if an Ontario nurse allows his/her license to go inactive (byconverting to the Non-Practising class) or lapse (by failing to renew licensebecause they are not actively practicing in Ontario that this should have noimpact as part of CGFNS’ license validation.
Marc alsopasses along additional notes about nurses returning to Ontario.
Ontarionurses who choose to maintain registration in the Non-Practising class need toapply for reinstatement of their CNO membership if they want to return toOntario to practice nursing. The reinstatementprocess includes passing the Ontario RN Jurisprudence Examination. The RN Jurisprudence Examination is an onlineexamination that assesses an applicant's knowledge and understanding of thelaws, regulations, by-laws, practice standards and guidelines that govern thenursing profession in Ontario. There isa $40 fee (CDN) to take the exam. Thisexam is different than the Canadian Registered Nurse Examination (CRNE), whichis the Canadian national examination that measures the competencies required ofnurses at the beginning of their practice.
ForOntario nurses who choose to resign their CNO membership, they can apply forreinstatement within 3 years of the date their CNO membership ended withouthaving to take any examinations, but would have to pay reinstatement fees. However, if a nurse wanted to return topractice as a nurse in Ontario after 3 years from the date their CNO membershipended, it appears they would have to apply for licensure under the same processas first-time applicants.
CGFNS TO DELETE FILES UNLESS USERS PURCHASE eSAVED
September 17, 2013
CGFNS is the only organization authorized by USCIS to issue Healthcare Worker Certificates (Visa Screen) to Registered Nurses. Among other things, CGFNS verifies the authenticity of the nurse's primary source documents, including the nurse's education. As part of their normal course of activity, CGFNS saves documents for four years.
CGFNS is now launching their eSAVED system. By purchasing eSAVED an applicant can have their electronic files saved at CGFNS for an additional year for $25. CGFNS is also offering to store files for an additional four years for $50, which represents a 50% savings on a year to year basis. The four year program at $50 is a promotional rate, conditioned upon applicant's purchasing by September 30, 2013.
CGFNS also issues Visa Screens for other healthcare occupations, such as Physical Therapists and Occupational Therapists, although these are much smaller programs when compared to their monopoly on Registered Nursing certifications.
CGFNS is now launching their eSAVED system. By purchasing eSAVED an applicant can have their electronic files saved at CGFNS for an additional year for $25. CGFNS is also offering to store files for an additional four years for $50, which represents a 50% savings on a year to year basis. The four year program at $50 is a promotional rate, conditioned upon applicant's purchasing by September 30, 2013.
CGFNS also issues Visa Screens for other healthcare occupations, such as Physical Therapists and Occupational Therapists, although these are much smaller programs when compared to their monopoly on Registered Nursing certifications.
OCTOBER 2013 VISA BULLETIN ANALYSIS
September 11, 2013
The Department of State has justreleased the October 2013Visa Bulletin. This is the first Visa Bulletin of the 2014 US FiscalYear, which begin October 1, 2013. There was virtually nochange in the dates from the September2013 Visa Bulletin. The September 2013 Visa Bulletin had a massivepromotion of dates.
The lack of retrogression in the new Visa Bulletin was awelcome surprise. The Department of State's comments in theprior Visa Bulletin led some to fear that there would be a retrogression. In those comments, the DOS explained that the massive promotion ofdates in the September 2013 Visa Bulletin was done to insure thatall available Fiscal Year 2013 immigrant visas wereused before the FY-2013 year's end on September 30, 2013.
It is not expected that the next few Visa Bulletins will include significantpromotions of dates. We may see the next promotions of dates after theNew Year.
The lack of retrogression in the new Visa Bulletin was awelcome surprise. The Department of State's comments in theprior Visa Bulletin led some to fear that there would be a retrogression. In those comments, the DOS explained that the massive promotion ofdates in the September 2013 Visa Bulletin was done to insure thatall available Fiscal Year 2013 immigrant visas wereused before the FY-2013 year's end on September 30, 2013.
It is not expected that the next few Visa Bulletins will include significantpromotions of dates. We may see the next promotions of dates after theNew Year.
Here is the chart:
| October 2013 Visa Bulletin | ||||
|---|---|---|---|---|
| All Other Countries | China | India | Philippines | |
| EB-2 | Current | 15SEP08 | 15JUN08 | Current |
| EB-3 | 01JUL10 | 01JUL10 | 22SEP03 | 15DEC06 |
EB-2 IMMIGRANT VISAS FOR PHYSICAL THERAPISTS
September 9, 2013
Because Physical Therapists have beendesignated by the U.S. Department of Labor as a ‘Schedule A occupation’, theyare exempt from the labor certification process (PERM) required for mostemployment based immigrant visas. PhysicalTherapy positions are eligible for EB-2 classification. The EB-2 category isthe immigrant visa classification for positions requiring at least an advanceddegree (Master’s degree or higher) or a Bachelor’s degree and five years ofprogressively responsible experience.
Generally speaking there is no backlogfor EB-2 visas for most countries (excluding India, Mexico, and China) and thusan immigrant visa can be obtained “immediately” as soon as the normal case processingis completed. In contrast, obtaining an immigrant visa for an individual filingin the EB-3 classification is currently a lengthy process which takes betweenfour to seven years.
The USCIS has struggled with processing PhysicalTherapist EB-2 petitions. At issue is notwhether these positions require a Master’s Degree. At issue is whether the Beneficiaries holdthe US equivalent of a Masters Degree. Theproblem stems from the fact that many Philippine colleges issue a diploma labeled“Bachelors” degree”. When US educationalevaluators review the diploma, coursework, and credit hours, they equatethis education background to a US Masters Degree. Educators such as FCCPT and 53 US stateand territory licensing jurisdictions all universally find that these degreesare equal to a US Masters Degree. All of the private educational evaluators that we have worked with have also issued Masters equivalent opinions. The opinion appears to be universal.
Well, almost universal. The USCIS often looks to AACRAO as itspreferred educational evaluator. AACRAO’sEDGE evaluation system alone has determined that these Philippine degrees arenot equal to a US Master’s Degree. Throughout the summer MU Law has filed severalsimilar briefs explaining this issue to the USCIS’ Administrative AppealsOffice. While we think we have thebetter argument, the decision-making rests in the AAO’s hands. We will let you know as soon as the AAOreleases their decision.