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November 9, 2016
Uncategorized

DECEMBER 2016 VISA BULLETIN: ANALYSIS

The Department of State has just issued the December 2016 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month’s Visa Bulletin.

December 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22SEP12	01FEB08	C	C
3rd	01JUL16	01JUL13	15MAR05	01JUL16	01JUN11

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues. For Consular processing cases a July 2016 date is effectively Current.

China: The China EB-2 date moved up two months. The China EB-3 date progressed three months. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers “upgrading” their applications to EB-2.

India: EB-2 India had another impressive progression from last month, moving forward three months. EB-3 moved ahead by one week.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another two months. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just three months. This is what we have expected. (Our note from September 2016: “This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.”).

We expect more of the same fast progression in FY2017 for Philippine EB-3. We expect that the Philippine EB-3 number will progress at least three years in FY2017.

November 7, 2016
Uncategorized

HOW THE US ELECTION WILL (OR WON’T?) CHANGE IMMIGRATION

OnTuesday US voters will go to the polls to elect 435House of Reprehensive members, 34Senators, and of course, a new US President and Vice President. The biennial election will set the stage forthe next two years of federal legislation. Pundits are calling it the mostimportant election of our lifetime and are predicting massivechanges in immigration law.

IfHilary Clinton is elected, she promises to make immigration a top priority. She iscalling for Comprehensive Immigration Reform including a pathway tolegalization for millions of undocumented and illegal foreign nationals. She expects to have legislation proposed withinher first 100 days.

IfDonald Trump is elected, he is callingfor a wall along the US-Mexican borderand greatly increased regulation in all corners of immigration. His changes to the law willbegin immediately.

Itseems unlikely to MU Law that any of this happen immediately. It also seems unlikely that any immigration changeswill be incremental, not dramatic.

Immigrationlaws are implemented in two basic ways: legislatively and administratively. Legislative laws must pass both branches ofCongress, the House and the Senate. The betting markets have concluded thatthe most likely outcome for this week’s election is that Hillary Clinton willwin the presidency, the Democratic Party will have a tiny majority in theSenate, and the House will remain in significant Republican control. Betting markets have proven to be a more reliable predictor ofelectoral outcomes than polls or pundits.

Thatoutcome is a recipe for gridlock. Evenif Hillary Clinton wants to push for a massive legalization program, she willneed to convince at least 50% of the House membership to go along with theplan. It is unlikely that a Republican-controlled House will want any part of a Clinton-inspired immigration bill. They will be much more likely to spend their timeon more email investigations and Benghazi hearings.

APresident-elect Clinton may be able to make some progress on administrative changes,which is also known as Executive Action. Administrative changes are interpretations of law by the Department ofHomeland Security. The Presidentultimately sets all policy for administrative agencies such as DHS.

PresidentObama had some success in this area, such as sanctioning the DACA rules, whichallowed undocumented foreign nationals to obtain work authorization if theyentered the US as children, provided that they had no other criminalrecord.

Throughthe USCIS, President Obama announced some additional Executive Actionin November 2014. He has had mixedsuccess in this area. He was rebuked bythe courts for overstepping his administrative authority when he sought tocreate DAPA, a program that would have extendedDACA-like rights to undocumented parents of US citizens and permanent residents. On the other hand, the USCIS has expandedwork authorization for certain spouses of H-1B visa holders.

Whichleads to our prediction: Hillary Clinton will win the US Presidency but willnot have success passing meaningful immigration legislation. She may be able to make marginal changes toimmigration policy through administrative decision-making, which will likely beless-dramatic and newsworthy.

October 28, 2016
Uncategorized

PTs SHOULD NOT LET FCCPT TYPE 1 CERTIFICATE EXPIRE

In a recent decision, USCISdemanded FCCPT issue Type 1 Certificates ONLY to graduates ofuniversity programs whose diploma reads “Master’s Degree” and who have at least202.1 credit hours. Any graduate of aprogram that is equivalent to a US Master’s Degree will no longer be eligibleto enter the US and practice Physical Therapy. In 2017, applicants will need a DPT to obtain a Type 1 Certificate.

Type 1 Certificate renewals willnot be subject to this new ruling. Renewal applications do not examine education, but only licensure andverification of English proficiency. PTswith a current Type 1 can renew the Type 1 Certificate without being subject tothe new standard. However, if the Type 1expires, the PT will have to make a new application and will be subject to thenew standard.

Type 1 Certificates are valid forfive years from the date of issue. MU strongly advises PTs totimely renew their Type 1 Certification so that they can continue to maintaintheir immigration status and their ability to work in the US.

October 26, 2016
Uncategorized

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DEC 23, 2016

Earlier this year in May the USCISpublished a proposedrule to increase fees. On October24, 2016, the final rule was publishedadjusting the fees for most immigration applications and petitions. The new fees will go into effect on December23, 2016.

The new fees are:

Form	Current Fee	New Fee	Change
I-129	$325	$460	$135
I-130	$420	$535	$115
I-140	$580	$700	$120
I-485	$1,070	$1,225	$155
I-539	$290	$370	$80
I-765	$385	$410	$25

A full list of all of the new feescan be found on the USCISwebsite.

The USCIS is almost entirely fundedby the fees paid by applicants and petitioners for immigration benefits. The fee increase is the first in the last sixyears and. The fees will go up anaverage of 21 percent and will recover the costs associated with frauddetection and prevention and national security.

October 20, 2016
Uncategorized

DOES A RELEASE AND SETTLEMENT PREVENT AN H-1B WORKER FROM BACK WAGES ?

When an H-1Bemployee separates employment from an H-1B employer, the H-1B employer oftenseeks a Settlement and Release. Theemployer’s goal is to put the matter to rest. It does not want the H1-B employer to file a private lawsuit seekingback wages or to file a Complaint with the Department of Labor.

H-1B employers alsooften are seeking to collect on liquidated damage provisions, which allow theemployer to recoup the costs associated with the separation of the employmentrelationship. Costs such as reputationalloss, replacement costs, and travel costs are usually recoverable under theH-1B rules

H-1B employer andemployees often seek a “global settlement,” which settles all outstandingclaims between the parties.

A 2015 Departmentof Labor decision, Guptav. Headstrong, 2014-LCA-00008, confirms the appropriateness andenforceability of these settlement agreements. In Gupta, the Administrative Law Judge heldthat the Settlement and Release extinguish all of the h-1B employee’s claims toback wages. Notably in Gupta, the two parties were the employerand the employee. The DOL was not aparty to that lawsuit.

It remainsan open question whether an H-1B employer can legally prevent an employee from filinga Complaint with DOL following a proper Settlement and Release. The DOL does not want to see any hindrance onan employee’s ability to file a Complaint to their agency.

In Gupta the Department attempted to havethe ALJ validate their reading of the law buy filing an amicus brief. The ALJ did not address this issue in theDecision. The Department would not, of course, have bothered to raise the issuein the amicus brief if it were a settled issue of law.

Nevertheless,an H-1B employee who fairly settles a back wage claim and who subsequently orconcurrently files a complaint with the DOL solely on a back wage claim (andwho continues to assert to the Department that the back wage claim remainsunsettled following a settlement on those same claims) may be committing fraudbefore a government agency.

October 18, 2016
Uncategorized

CHECKING IN ON THE VISA BULLETIN

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association. Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month. This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog. Here are some highlights:

Philippine EB3 – Charlie again offered his most optimistic predictions for this category. He expects that this category will move several months at a time because demand from those with priority dates from 2011-12 is lower than originally thought. This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.

India EB2 and EB3 – Charlie expects that EB2 will move into November 2008 by March of 2017. While he did not comment on EB3 at this time, last month he said that the EB3 category will move only one week per Bulletin.

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future. It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.

China EB-2 and EB-3 – These categories will continue to see-saw. The DOS is now seeing the EB-3 category demand pick up because of EB-3 “downgrades” from EB-2.

October 12, 2016
Uncategorized

NOVEMBER 2016 VISA BULLETIN

The Department of State has just issued the November 2016 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month’s Visa Bulletin.

November 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	12JUL12	01NOV07	C	C
3rd	01JUL16	22APR13	08MAR05	01JUL16	01APR11

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues. For Consular processing cases a July 2016 date is effectively Current.

China: The China EB-2 date moved up one month. The China EB-3 date progressed three months. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers “upgrading” their applications to EB-2.

India: EB-2 India had another impressive progression from last month, moving forward over ten months. EB-3 actually retrogressed one week.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another three months. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas in just two months and is now a trid of the way through 2011. This is what we have expected. (Our note from September 2016: “This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.”).

We expect more of the same fast progression in FY2017 for Philippine EB-3. We expect that the Philippine EB-3 number will progress at least three years in FY2017.

October 6, 2016
Uncategorized

SUPREME COURT REFUSES TO RE-HEAR CASE ON OBAMA’S IMMIGRATION EXECUTIVE ACTIONS

On Monday, October 3, 2016, the USSupreme Court refused to reconsider the case regarding the expansion of DACAand creation of DAPA. DACA,created in 2012 will remain in place.

President Obama sought to expand the qualifyingcriteria for DACA and create a program for the undocumented, immigrant parentsof US Citizens. President Obama createdDACA and sought to expand DACA and create DAPA by Executive Order, not an actof Congress. A group of states sued theUS federal government, arguing the President did not have the power to expandDACA or create DAPA. In 2015, a FederalJudge agreed with the states and held the program to be invalid.

In January 2016 the Supreme Courtagreed to hear the case and seemed poised to issue a landmark decision onimmigration. However, the Supreme Courtdeadlocked in a 4-4 decision which left in place the lower court’s, FederalJudge’s decision. President Obama thenasked that the Supreme Court re-hear the case.

The Supreme Court rarely reconsidersa case, but sometimes agrees to do so when the court is split 4-4 because oneof the 9 justices is vacant due to illness, retirement, or death. Even if the Supreme Court had agreed tore-hear the case, the decision would not take effect until 2017 or later, afterPresident Obama has left office. Thisdecision (or indecision) by the Supreme Court draws more attention to thequestion of immigration and presidential power in the upcoming election.

October 3, 2016
Uncategorized

LAWSUIT AGAINST H-1B LOTTERY SURVIVES KEY LEGAL HURDLE

Earlier this year, on June 2, 2016,a lawsuit against the USCIS was filed in federal court alleging the H-1B cap isunlawful because federal law requires H-1B applications be processed on a firstcome/first serve basis.

The lawsuit was filed as a classaction, a legal procedure which allows multiple individuals with the samegrievance(s) to join together and file one lawsuit. The case was filed by two employers and twoH-1B workers whose cases were not selected in the H-1B cap.

The USCIS filed a motion to havethe lawsuit thrown out of court, stating the H-1B workers cannot sue becausethey are not in the US and that the H-1B employers have not been injured by theH-1B lottery system. On September 23,2016, the federal judge in the case rejected these arguments and indicated the case will move forward.

If the lottery system is ended, thelawsuit argues that the USCIS should give priority dates to H-1Bs and processthe cases in the order received, similar to how green cards are issued. Alternative approaches which have beensuggested by various stakeholders include:

Raising the H-1B cap to a higher number
Basing the number of H-1Bs on the demand in the USeconomy
Creating H-1B cap exemption for those in STEMfields
Creating H-1B cap exemption for Schedule Aoccupations (currently RNs and PTS)
Creating H-1B cap exemption for those with a USmaster’s degree or greater

September 28, 2016
Uncategorized

AAIHR: USCIS ACTION ON FCCPT HURTS PATIENTS, PRACTITIONERS

The USCIS is no longerallowing fully-qualified foreign-educated physical therapists to practice inthe US unless they have qualifications that far exceed American-educatedphysical therapists. This action harmsUS patients, who are already struggling to find qualified physical therapists.

A simple review of recentnews stories shows that Physical Therapy is the occupationin shortest supply. These supplyshortage are already showing up across the US. For instance, places like Texas,Arizona,and acrossthe US.

The USCIS’ actionis contrary to opinions by CAPTE, APTA, and the 53 State Boards of Physical Therapy,which includes all 50 states and other jurisdictions, such as Puerto Rico and WashingtonDC.

The AmericanAssociation of International Healthcare Recruitment is gravely concerned byUSCIS’ intent to deny the authority of the FCCPT to issue foreign physicaltherapy healthcare worker certifications. Musillo Unkenholt, who is a member of the AAIHR, is working closely with the AAIHR to develop a strategy and dialogue with the USCIS over this decision.

APTA reports theshortage of physical therapists could potentially reach over 27,000 in theUnited States by 2020, driven by a Bureau of Labor Statistics projected 34percent increase in demand in physical therapists over the next eight years.This projection assumes that physical therapists trained abroad will continueto immigrate. The USCIS decision will only worsen this shortage.

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