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JULY 2016 VISA BULLETIN

The Department of State has just issued the July 2016 Visa Bulletin.  This is the tenth Visa Bulletin of Fiscal Year 2016. 

July 2016 Visa Bulletin

Final Action Dates

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

Employment- Based
All Chargeability Areas Except Those Listed
 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN10 01NOV04 C C
3rd 01MAR16 01JAN10 22OCT04 01MAR16 15FEB09
MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 moved forward by two weeks.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Both Chinese categories remained at January 2010.  A note in this month’s Visa Bulletin indicates that these dates will stay at January 2010 for August and September 2010’s Visa Bulletin.

India:  EB-3 moved ahead one month.  But the EB-2 remained stuck in 2004.  We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. The note in this month’s Visa Bulletin indicated that the EB-3 date should move through 2009 and may move into 2010 by September, as MU Law has been expecting.  (Our note from May 2016: “MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.”)

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization. 

Employment-
Based		 All Chargeability
Areas Except
Those Listed		 CHINA-
mainland
born		 INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JUN13 01JUL09 C C
3rd C 01MAY15 01JUL05 C 01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 


FSBPT RAISING PT EDUCATION STANDARDS

The evolution of PhysicalTherapy educational continues.  Theprofession had long been governed by a Bachelors degree standard until the late1990s when universities raised their first degree to a master’s degree.  State licensing boards and the FCCPT followedand by the early 2000s the minimum entry degree into the profession was officiallya master’s degree.  In the early part ofthe decade the minimum educational standard evolved again.  It is now a Doctorate of Physical Therapy(DPT).
In concert with theevolution, FCCPT is also evolving their Course Work Tool to their sixth updatedversion (CWT-6).   The CWT-6 is the toolby which educational evaluators equate foreign-educated Physical Therapists.
From the FCCPTMay 2016 News Brief:
The FSBPTCoursework Tool is used by credential review agencies to determine if anon-CAPTE educated PT’s education is substantially equivalent to aCAPTE-educated PT. The CWT was revised to reflect the new CAPTE standards forPT and PTA programs taking effect January 1, 2017. Changes in the CWT 6 includean increase in total credits required from 150 to 170 credits and an increasein clinical hours from a minimum of 800 to 900 hours.
Post-graduate workwill be considered in the evaluation. Again from their May 2016 News Brief:
Based on theFramework, the CWT 6 Guidelines for Interpretation will be revised to allowcredential review agencies to consider clinical, direct patient care, workexperience that meets certain criteria towards the CWT 6 required 900 clinicaleducation hours. There are a number of parameters and limitations included inthe Framework to ensure that the practice experience meets a minimal level ofquality. Post-graduate clinical experience hours requirements for physicaltherapists:
1. Completed anaverage of at least 20 hours per week for a minimum of 1,000 hours.
2. Completed 1,000hours in direct patient care.
3. Completed thehours within the most recent three years preceding the application.
4. Completed thehours within a hospital, rehabilitation center, or other facility that employeda minimum staff of at least three (including the applicant) practicing PTsduring the applicant’s clinical experience hours. Federation of State Boards ofPhysical Therapy Page 3
5. PTs employed atthe facility with the applicant must have been available for consultation.
6. At least one ofthe PTs employed at the facility with the applicant must have at least twoyears experience practicing as a PT.
7. Verificationthat the applicant was eligible to practice in the country in which theexperience was completed.
8. Verificationthat the applicant has had no disciplinary action against any professionallicense held for at least two years.
9. Notarizedverification of the work experience provided by a supervisor such as the departmenthead of the physical therapy practice or the director/head of the facility
Additionally, anyuniversity externship conducted under the supervision of a university PTprogram, credentialed residency or fellowship would be an acceptable option tomeet a deficit of clinical education hours. These are rarely available,especially outside of the US, but are an acceptable option. Typically, withinthe US, a participant in a residency/fellowship must be licensed and due to thelicensure requirement, a US residency/fellowship would most likely beunavailable.

H-1B SERIES PART THREE: WHEN DOES THE H-1B EMPLOYER’S WAGE OBLIGATION END ?

H-1B SERIES PART THREE: WHEN DOES THE H-1BEMPLOYER’S WAGE OBLIGATION END ?
An H-1B employer’swage obligation when it effects a bona-fide termination.  The employer must take three steps to effecta bona-fide termination.  Once all threesteps are taken, the employer is said to have made the bona-fide termination:(1) The H-1B employer expressly terminated the employment relationship with theH-1B worker; (2) It notified USCIS of the termination so that the petitioncould be cancelled; and (3) It offers to pay or reimburse the worker for thereasonable cost of return transportation to his or her home country.  This three step test is taken from AmtelGroup of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006,slip op. at 11 (ARB Sept. 29, 2006). 
The Dedios court pointed out that there aresome very limited exceptions to thethree step test outlined in Amtel Group.  The exceptions are found in cases such as: Batyrbekovv. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-025 (ARB July 16, 2014):see also Puri v. University of Alabama Birmingham Huntsville, ARB No. 13-022,ALJ Nos. 2012-LCA-010, 2008-LCA-038, 2008-LCA-043 (ARB Sept. 17, 2014).

The most obviousway for an H-1B employer to meet the first step is to send a letter or email tothe H-1B employee notifying him of the termination of employment.  Since the H-1B employer in Dedios waited many months before sendingthe employee a termination letter, the Court found that the wage obligationcontinued until October 27, 2010, in spite of the fact that the employernotified USCIS on June 1, 2010 and offered a flight back to the employee’snative Philippines on May 21, 2010.

H-1B SERIES PART TWO: WHEN DO H-1B EMPLOYERS’ SALARY OBLIGATIONS BEGIN ?

H-1B Series Part Two: When do H-1B employers’salary obligations begin ?
An employer mustpay wages on the date that an H-1B employee enters into employment with theemployer.  An H-1B employee “enters intoemployment” when the employee makes himself available for work or otherwisecomes under the control of the employer, such as by waiting for an assignment,reporting for orientation or training, going to an interview or meeting with acustomer, or studying for a licensing examination, and includes all activitiesthereafter. 
An H-1B worker isautomatically deemed to have entered into employment 30 days after he entersthe United States, or 60 days after H-1B approval if he is already in theUnited States.
The H-1B employeein Dedios met with clients“interviewing” with a potential client of the H-1B employer.  The DOL correctly found that this constituted“entering into employment,” in spite of the fact that the work with theend-client never materialized.

H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

H-1B SERIES PART ONE: WHO CAN PAY H-1BFILING FEES AND PROFESSIONAL FEES ?
The H-1Bregulations prohibit an employer from receiving, or the employee from paying,the filing fee for the visa. 20 C.F.R. §655.731(c)(10)(ii). H-1B employers mustalso pay certain other “business expenses” that are connected to the H-1Bprogram.
In Dedios, the court found that the H-1Bemployee’s payment of legal fees, USCIS filing fees, and educational evaluationfees were all “business expenses” connected to the H-1B program.  Therefore when the H-1B employer required theH-1B employee to make these payments, the H-1B employer violated law.
In limitedcircumstances H-1B employees can pay for some costs that may be related to anH-1B employee’s employment.  Thesecircumstances are found at 20 CFR655.731(c)(9)(iii).  

DOL CASE HIGHLIGHTS ALL ASPECTS OF H-1B EMPLOYER LIABILITY

A recent Departmentof Labor decision, DeDios v. Medical Dynamic Systems, Inc.,is a great primer on how employers and attorneys should treat H-1B employeesalary obligations.  The case highlights severalkey issues: when does an H-1B employer’s salary obligation begin, when does itend, whether an employee may pay the H-1B filing and professional fees, and howto treat “benching”.

MU Law is using the DeDios case for a series on H-1B employer wage obligations.  We have also updated our “Top 10things employers should keep in mind in order to stay compliant with the H‐1B visaprocess”.  If you would like acopy of the Top 10, pleaselet us know.

The series will run over the next few blog posts.

UPDATES ON THE VISA BULLETIN

AILA recentlypublished its May“Check-In with Charlie”.  The Check-Inis a Q&A with the Department of State’s Chief of the Visa Control andReporting Division.  Charlie isultimately the person responsible for the publication of each month’s VisaBulletin.  This month’s Check-In providedthese insights into the Visa Bulletin for Beneficiaries of the most commonemployment-based immigrant visas.
India.  The EB-2 date will only advance slowly forthe remainder of the US Fiscal Year, i.e. until October 1, 2016.  The EB-3 date will also move slowly for therest of this fiscal year.
China. EB-2China has a more favorable date than EB-3 China.  This is expected to remain in place for theremainder of the fiscal year.  SinceChina EB-2 is now more favorable than China EB-3, it is expected that EB-3 “downgrades”will end.

USCIS PUBLISHES PROPOSED FILING FEE INCREASE

On May 4, 2016, theUSCIS publisheda proposed rule that will increase filing fees by an average of 21 percent.  The proposed fees for most businessimmigration filings are in the table, below.  The above-link will lead the reader to thefull list of proposed increases. 
USCIS is takingpublic comments through July 5, 2016. They last raised their fees in 2010. USCIS fees basically pay for the entire USCIS budget.  Very little of the USCIS’ budget comes fromfederal tax dollars.

Proposed fees
Form
Current Fee
Proposed Increase
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
+$30

JUNE 2016 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2016 Visa Bulletin.  This is the ninth Visa Bulletin of Fiscal Year 2016. 

June 2016 Visa Bulletin

Final Action Dates

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

Employment- Based
All Chargeability Areas Except Those Listed
 CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN10 01OCT04 C C
3rd 15FEB16 01JAN10 22SEP04 15FEB16 01NOV08
MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains at Feb 15, 2016, just as it was last month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Both Chinese categories retrogressed, reflecting greater demand.  The DOS predicted that EB-3 would retrogress in a note to last month’s visa bulletin.

India:  EB-3 moved ahead a few weeks.  But the EB-2 retrogressed by four years.  We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization. 

Employment-
Based		 All Chargeability
Areas Except
Those Listed		 CHINA-
mainland
born		 INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JUN13 01JUL09 C C
3rd C 01MAY15 01JUL05 C 01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 


USCIS ISSUES NEW OPT STEM EXTENSION PROGRAM

OnMarch 11, 2016 the USCIS published the rules of a new, expanded STEM ExtensionOPT program.  The new STEM Extension will go into effect Tuesday, May 10,2016.  Among other changes, the program extends the length of the STEMExtension from 17 months to 24 months and that students are now permitted anaggregate of 170 days of unemployment for OPT and the STEM Extension period.  For more information, please visit https://studyinthestates.dhs.gov/

EMPLOYERREQUIREMENTS
Thenew STEM Extension Program requires more from employers.  To employ a student under the new STEMProgram, employers must:
  1. Bean E-Verify employer.  This remainsunchanged from the previous STEM Extension Program.
  2. Paythe student a wage commensurate to similarly situated US workers.  The calculation of this wage should bedocumented in the student’s employment record.
  3. Employthe OPT student for at least 20 hours per week in a position that is directlyrelated to the student’s degree.
  4. Reportany material changes in the student’s employment to the appropriate schoolofficial.  Material changes include: achange in the student’s hours, compensation, worksite, supervisor, or changesto the corporate structure.  Employersmust also report a termination or resignation of employment to the schoolofficial within 5 business days.
  5. Besubject to site visits by USCIS Officers to verify the student’s employment.
  6. Completeand comply with a training plan for the student’s employment.  See below for additional details about thetraining plan.

TRAININGPLAN

TheSTEM Extension Training Plan has four components:
  1. Describethe student’s role.  List specific tasks,give time frames and goals, describe the phases of the student’s training.
  2. Identifythe goals and objectives of the training. State specific skills, techniques, or knowledge the student will gainwhile employed and describe projects or assignments where the student will usethese skills.
  3. Detailthe employer’s oversight of the student. State the frequency with which the student will meet with his/hersupervisor.  Detail how the supervisorwill review or sign off on the student’s work and describe any existingtraining programs in place.
  4. Definethe measures and assessments by which the student will be evaluated.  Detail how the student’s progress will betested.  Note any new technologies orskills which will be learned and keep a journal of or regular reviews ofstudent’s work.

Employer’sCertification 
Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the ImmigrationService.  By signing the training plan,the employer confirms:
  1. Employmentis directly related to the student’s degree and achieves the objectives of thetraining program;
  2. Studentwill receive supervision and training by experienced staff;
  3. Employerhas sufficient resources and personnel to provide training to the student;
  4. TheOPT student is not replacing a full- or part-time, temporary or permanent USWorker.  The terms and conditions of thestudent’s employment are commensurate with similarly situated US Workers at thecompany.
  5. Thetraining complies with all applicable federal and state requirements related toemployment.
TRANSITIONRULES
Thereare three primary groups of students impacted by the implementation of the newSTEM Extension Program:

1.  Studentson a 17 month STEM Extension.
  • Thesestudents with 150 days of time left on their OPT can apply for an additional 7months of OPT, giving them the full 24 months of STEM OPT.
  • These7 month requests must be filed between May 10 and August 8.  The request requires a new I-20, I-765, andfiling fee.
  • Ifthe student elects not to ask for the 7 month extension, the student completesthe STEM OPT Period under the old rules.
2. Studentswith a pending STEM Extension on May 10, 2016.
  • Thenew rules apply to the STEM extension request. These students should expect an RFE to be issued requesting a trainingplan and other new requirements. 
  • Byresponding to the RFE the student amends the STEM OPT to the full 24 monthperiod without filing a new request.
3.  Studentson a 12 month OPT.
  • Ifthe OPT expires before May 10, the student should file for the 17 month STEMExtension and expect an RFE (as outlined in #2 above).
  • Ifthe OPT expires after May 10, the student should file by June 1 under eitherSTEM Extension Program – the 17 month or 24 month.
  • Ifthe OPT expires after June 1, the student must file the STEM Extension underthe 24 month program.
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Musillo Unkenholt LLC is a full-service immigration law firm headquartered in Cincinnati, Ohio, serving clients throughout the United States and the world.

Our attorneys have vast experience in an array of immigration processes.

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Cincinnati, OH 45202

Phone: 513.381.VISA (8472)

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