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THE BLOG IS TWELVE YEARS OLD

I’m taking a brief time-out fromthe usual updates on healthcare immigration to note that this blog isnow twelve years old!   The firstblog post was on March 27, 2006 when I was with Hammond Law Group.  At that time, very few immigration law blogsexisted.  The idea of a blog with such a narrow focus seemed a littlenaive, but thanks to a regular readership the blog has thrived.  

In November 2007 Sam at ILW.comasked if I would like to syndicate my blog through ILW.com, whichI immediately agreed to do. Readership doubled.    ILW.comhas been a leader in immigration law information and a great supporter. ILW.com now houses about a dozen blogs.  This one was the second,after Greg Siskind’s blog.

The blog’s main page at Musillo.comregularly attracts 15,000 monthly page views, sometimes doublingor tripling that number.  The current iteration of the blog (since 2009) passedone million page views earlier this month!

The best part about the blog hasbeen the people that have connected with me through the blog.  I’ve beenin Senate staff meetings and had their senior staff tell me thatwere regular readers.  AILA’s Annual Conference is always a funtime because there are always a few attendees who read my name tagand tell me that they are regular readers.  Readers are always commenting.They are the blog’s lifeblood. 
Thanks to all of you for yourkind words and input.

The blog is accessible through anumber of channels.  I hope that you will keep reading and commenting.

Main Page: www.musillo.com
ILW.com syndication: http://blogs.ilw.com/nurse_immigration/
Subscribe via Email: (right hand side) www.musillo.com
Facebook: http://www.facebook.com/MusilloUnkenholtLLC
Twitter: https://twitter.com/ChrisMusillo

USCIS TO SUSPEND PPS FOR H-1B CAP CASES

USCIS will temporarily suspendpremium processing for all FY 2019 cap-subject petitions, including petitionsseeking an exemption for individuals with a U.S. master’s degree or higher.This suspension is expected to last until Sept. 10, 2018.


During this time, USCIS willcontinue to accept premium processing requests for H-1B petitions that are notsubject to the FY 2019 cap.

USCIS’ press release says that thistemporary suspension will help them reduce overall H-1B processing times inthese ways:
-Processlong-pending petitions, which we have currently been unable to process due tothe high volume of incoming petitions and the significant surge in premiumprocessing requests over the past few years; and
-Prioritizeadjudication of H-1B extension of status cases that are nearing the 240 daymark. 

Starting April 2, 2018, USCIS willbegin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap.  The H-1b cap is expected to be reached duringthe first week in April.

VISA BULLETIN APRIL 2018: MASSIVE PROGRESSIONS IN INDIA AND PHILIPPINES

The Department of State has just issued the April 2018 Visa Bulletin.  This is the seventh Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month’s Visa Bulletin.
April 2018 Visa Bulletin
Table A: Final Action Dates — Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.
EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL’PNES    
EB-1
C
01JAN12
01JAN12
C
C
EB-2
C
01AUG14
22DEC08 
C
C
EB-3
C 
01JUN15
01FEB08 
C 

01JAN17      

Table B: Dates for Filing — The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL’PNES    
EB-1
C
C
C 
C
C
EB-2
C
01FEB15
08FEB09 
C
C
EB-3
C 
01JAN16
01APR08 
C 

01JUL17    

MU Law Analysis (all references are to Table A unless noted)
All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.
China (mainland-born):  Both China EB-2 and EB-3 favorably progressed, each by more than 6 months in Table A.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.  The Chinese EB-1 date retrogressed back to 2012.  We will have a blog post about this shortly.

India:  Although EB-2 barely moved, EB-3 leaped ahead one year!  This is terrific news for Indian EB-3 cases.  While we do not think that another one year movement is in the future, it would not surprise us if the progress holds because (a) the 2007 Visa Gate situation has now passed, and (b) the 2007-12 recession led to a smaller number of green card filings than would have otherwise been filed.  The India EB-1 date retrogressed back to 2012.  We will have a blog post about this shortly.
Mexico: Mirrors All Other in analysis.
Philippines: While our internal measures indicated last month that we should be optimistic that Phils EB-3 would continue to move forward, we did not expect just how positive the progression would be.  Phils EB-3 is now at Jan 2017, which is only a 14 month retrogression. Great news indeed!

H-1B CAP SUPPLY AND DEMAND V. UNEMPLOYMENT RATE

In 2009, a mere 9,000 H-1Bs were received in the first monthof H-1B processing.  It would be 264 days before the H-1B cap was reached. In 2010, it took 300 days until the H-1B cap was reached.  In 2011,there were 236 days between the April 1, 2011 cap opening and the November 23,2011 cap being reached.  Not coincidentally, the US employment rate from2009-2011 ranged between eight and ten percent.

On the other hand, the H-1B cap was reached on the very first day in 2007,2008, each year since 2013, mirroring the low unemployment rate.


The lack of H-1B petition filings in years when theunemployment rate is high is compelling evidence against the argument thatinternationally-trained workers are being used to displace American workers andlower US workers’ salaries.

Why?  Because if H-1B visa labor was being used primarily to lower USworkers’ salaries, then H-1B filing numbers would not correlate with USunemployment rates.  If anything, the reverse would happen because theincentive to reduce workers’ salaries is likely greater in a recessed economy,not less.

SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

1.                  These types of cases are subject to the H-1Bcap:

  • International students working on an EAD cardunder an OPT or CPT program after having attendeda U.S. school;
  • International employees working on a TN may needan H-1B filed for them in order for them to pursue a permanent residency (greencard) case;
  • Prospective international employees in anothervisa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exemptorganization; and
  • Prospective international employees currentlyliving abroad.

2.                  These types of cases that are not subject toH-1B cap:

  • H-1B amendments/extensions/transfers
  • When the employee has been in H-1B status forless than 6 years
  • Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore,Australia, Canada, Mexico
  • MDs who have received a J-waiver of their 2years foreign residency requirement.
  • H-1Bs filed by institution of higher education (or itsaffiliated or related nonprofit entities), a nonprofit research organization,or a government research organization.

3.                  Employees with aU.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs a Masters Cap H-1Blottery to determine 20,000 lottery winners. All H-1B applicants who lose this lottery are then placed in the general65,000 H-1B lottery.
4.                  Cap-Gap Rule: USCISautomatically extends the H-1B status of OPT F-1 students who win the H-1Blottery.  The OPT F-1 status is extendedthrough October 1, at which point the status converts to H-1B by operation oflaw.
5.                  An Employeedoes not have to hold H-1B status for the employer to initiate green cardprocess. This can be started while the employee is on F-1 or most otherstatuses.
6.                We do not recommend that F-1 studentstravel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to beabandoned.  If the F-1 student doestravel, the employee is required to apply for an H-1B visa abroad beforere-entering the US.

7.                  The employee’s proposed worksite may not change untilthe H-1B CAP petition is approved.  Ifthe worksite changes the USCIS is inclined to deny the case.  If possible the H-1B cap petition should beupgraded via Premium Processing.  Uponapproval of the H-1B, the employer can file an H-1B amendment.

H-1B CAP: PAST DEMAND AND 2018 DEMAND

This year’s H-1B filingdate of April 1, 2018 is coming fast.  MU Law predicts that H-1Bpetitioners will file fewer than the 200,000 petitions that were filed lastyear.  
When the USCIS receivesmore H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lotterybecause it received over twice as many H-1B petitions as there are slotsavailable.
If you are consideringfiling an H-1B cap-subject petition, MU Law urges you to begin that processnow.
The H-1B is usuallyassociated with IT positons.  Most of theH-1B slots are used by IT professionals.  Many healthcare professions alsoqualify for H-1B status, including Physical Therapists, OccupationalTherapists, Speech Language Therapists, and some Registered Nursing positions.
International workerswho are working in the U.S. on an H-1B visa with another H-1B employer are notsubject 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 need a”cap-subject” H-1B include:
* International studentsworking on an EAD card under an OPT or CPT program after 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 with acap 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 1, 2007
H-1B 2008 (FY 2009)
85,000
April 1, 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 1, 2013
H-1B 2014 (FY 2015)
85,000
April 1, 2014
H-1B 2015 (FY 2016)
85,000
April 1, 2015
H-1B 2016 (FY 2017)
85,000
April 1, 2016
H-1B 2017 (FY 2018)
85,000
April 1, 2017
H-1B 2018 (FY 2019)(projected)
85,000
April 1, 2018

VISA BULLETIN MARCH 2018: ANALYSIS AND PREDICTIONS

The Department of State has just issued the March 2018 Visa Bulletin.  This is the sixth Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month’s Visa Bulletin.
March 2018 Visa Bulletin
Table A: Final Action Dates — Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.
EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL’PNES    
EB-1
C
C
C 
C
C
EB-2
C
01DEC13
15DEC08 
C
C
EB-3
C 
15NOV14
01JAN07 
C 

01MAY16       

Table B: Dates for Filing — The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL’PNES    
EB-1
C
C
C 
C
C
EB-2
C
01FEB13
08FEB09 
C
C
EB-3
C 
01JAN16
01JAN08 
C 

01OCT16       

MU Law Analysis (all references are to Table A unless noted)
All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.
China (mainland-born):  Both China EB-2 and EB-3 favorably progressed, each by two months in Table A.  The China EB-3 remains more favorable than Chinese EB-2.  The odd situation of China EB-3 progressing faster than China EB-2 will remain to be the case for the foreseeable future.  A note at the end of the February Visa Bulletin says that both China EB-2 and  EB-3 should move several months in the near future.
India:  Both India EB-2 and EB-3 progressed.  EB-2 only progressed by one week.  EB-3 moved ahead by 4 weeks.  A note at the end of the February Visa Bulletin says that India EB-3 should move 1-3 months in the near future.
Mexico: Mirrors All Other in analysis.
Philippines: The Philippine EB-3 date moved two months, which is its best movement in FY2018. This may reflect the fact that I-485 processing times may slow because of the new I-485 EB interview requirement.  If EB I-485 interview times slow, it will cause the DOS to free up more visas for Consular Processing petitions.  This is also reflected in the fact that EB-3 Table B moved three months.  A note at the end of the February Visa Bulletin says that we should expect one month movements in EB-3. MU is slightly more optimistic than this projection.

H-1B CAP 2018: NEWS AND NOTES

The H-1B cap filing date will behere before you know it.  New H-1Bs aresubject to the H-1B cap and must be filed on April 2-6, 2018, for a start dateof October 1, 2018.  The USCIS treats allH-1Bs that are filed April 2-6 as if they were filed on the first day of H-1Bseason.
The H-1B cap will surely beoversubscribed next year. When the H-1B cap is oversubscribed, the USCIS holdsan H-1B lottery, which is what they did this past April.  In April 2017, 42% of H-1Bs that were filed onApril 1 “won” the H-1B lottery and 58% lost the H-1B lottery. 
This year we are expecting thatfewer H-1Bs will be filed than in 2017.  Itwould not surprise us if the H-1B lottery winners exceed the number of H-1Blottery losers.
A variety of types of case are subjectto H-1B cap:
  • International students working onan EAD card under an OPT or CPT program after havingattended a U.S. school;
  • International employees working ona TN may need an H-1B filed for them in order for them to pursue a permanentresidency (green card) case;
  • Prospective international employeesin another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exemptorganization; and
  • Prospective international employeescurrently living abroad.

These types of case are not subjectto H-1B cap:
  • H-1Bamendments/extensions/transfers
  • When the employee has been in H-1B status for less than 6 years
  • Trade Visas(H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada, Mexico
  • Institution ofhigher education (or its affiliated or related nonprofit entities), a nonprofitresearch organization, or a government research organization.
Please contact us if you have any questionsor are looking for representation in filing H-1B cap petitions.

H-1 CAP 2018: USCIS UPDATE

The American Immigration LawyersAssociation recently confirmed with the USICS Service Center OperationsDirectorate that the USCIS is not anticipating any procedural changes to theH-1B cap for the coming April 2018 filing season.  The USCIS confirmed they intend to follow thesame procedure using for April 2017 filings this year and will not require anytype of pre-registration for H-1Bs filings.
In addition, the USCIS confirmedthat they do not anticipate premium processing will be suspended for non-capH-1B petitions, including H-1B transfers, amendments, or extensions.  However, there may be a brief moratorium onpremium processing for H-1B cap petitions filed in April 2018.
Musillo Unkenholt is hosting an H-1B Cap Webinar on January31.  We will be discussing a variety ofimmigration issues, including present and forthcoming Trump administrationpolicy changes. 
To register, please visit: https://app.livestorm.co/musillo-unkenholt/h-1b-cap-season-2018

EXPECTED FORTHCOMING VISA BULLETIN AVAILABILITY

The DOS recentlyreleased its expected availability for the next several months.  Those dates are:
EMPLOYMENT-basedcategories (potential monthly movement)
EmploymentFirst: The category will remain “Current” for all countries for the nextseveral months.
EmploymentSecond: Worldwide: Current China: Several months India: Up to two weeks Employment
Third:Worldwide: Current China: Up to five months India: One to three months Mexico:Current Philippines: Up to one month
As wehave previously mentioned, we believe that these projections may underestimatethe progression of Consular Processed cases because the new I-485 interview-requirementsmay slow I-485 processing times.  IfI-485 processing times do slow, these visas will not go unused. Instead, theywill flow into the Consular Processed cases. There will be no announcement of this phenomenon, it will just happen asa matter of legal process. 
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