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PROPOSED H-2C LAW WOULD ALLOW QUICK VISAS FOR NURSES, OTHER NON-H-1B OCCUPATIONS

Sen. Flake’s bill,the WillingWorkers and Willing Employers Act of 2016, will allow workers who work inJob Zones 1 through 3 to perform year-round non-agricultural work in the UnitedStates.
Job Zones 1-3generally are those positions that require less than a bachelor’sdegree, such as registered nurses, licensed practical nurses, physicaltherapy assistants, occupational therapy assistants, caregivers, and othersimilar allied health professionals.
Sen. Flake’s billincludes many US worker protections, such as: 
  • Sponsoringemployers would have to pay a “Scarcity Recruitment Fee,” in addition to USCISfiling fees.  This fee is equal to 5 percent of the H-2C’s annualsalary.
  • Thejob must be in a full employment area, which is a county whose unemploymentrate is 4.9 percent or less.
  • Employershave to attest that there are no US workers being laid off as a result of theH-2C workers’ employment.
  • Employershave to prove that they have actively recruited US workers for the position.
  • Employerswould have to participate in E-Verify.

The H-2C programwould be active for 10 years.  It will have a flexible cap of 45,000 –85,000 depending on demand.
H-2C visa holderswould also be barred from bringing in any family members into the US. However they would be able to file for permanent residency, at which time theirfamily members can come to US.
Unfortunately, mostpundits give Sen. Flake’s bill virtually nochance of passing.  While this bill is not perfect, it is good to seethat there are some Republican Senators who still understand the value thatimmigration brings to the US.

NURSE SHORTAGE SHOWING SIGNS ALL ACROSS THE US

As the economyimproves, the nursing shortage will continue to escalate.  The reasons are many: Baby Boom Generation Demand, Aging NursingWorkforce, Few Nurse Educators, Distribution Challenges, and a lack of availablevisa for Foreign-trained Nurses. 
We may beapproaching the tipping point.  We are beginningto signs from all across the US that nursing shortages are impacting patientcare.  All of the articles linked belowhave been published in the last 10 days.
Alabama:“Schoolnurses in the Mobile County Public School System say they’re in a crisis. Manyspoke at the board meeting Monday night to explain how not having enoughnurses is putting children’s lives in danger.”
SouthDakota:  “A shortage of registerednurses has become so severe at one South Dakota hospital that it’s actuallybeen forced to close hospital beds.”
Oregonand Washington: “Oregon and Washington will be short a combined 13,000 registered nursesby 2025”.  This article cites the agingnursing workforce, the distribution problems, and the lack of nurse educators.
Georgia:“A nurseshortage has driven up wages, making it hard for nonprofits like hers tocompete.”
Kentucky:“the onething abundantly clear is that the problem lies not only in putting students inseats, but in finding educators to get them to the cap and gown.”

DOS ADDRESSES EB-3 PHILIPPINES AND INDIA VISA BULLETIN RETROGRESSION

AILA regularlychecks in with Charlie Oppenheim, who is the Department of State’s expert onVisa Bulletin numbers.  Their most recentCheckIn with Charlie contains his projections for several major visa categories.
EB-3 Philippines
The expectation isthat Philippines EB-3 VB date will continue to advance a few months at a time,consistent with movement over the past few months.  He “hopes” that the date will progress intomid-2010 before the end of this fiscal year in September 2016.
There are currentlyabout 4,200 immigrant visas in the pending demand file.  The Texas Service Center has 1,600, the NebraskaService Center has 1,200, and the US Consulate in Manila has 1,400.
Charlie expects EB2Philippines to be current for the foreseeable future.
EB-2 and EB-3 India
Both India EB-2 andEB-3 will move slowly forward, although because of unusual demand for EB-1 itis difficult for Charlie to accurately predict movement in these categories.  Normally, light demand for EB-1 numbers meansthat unused EB-1s trickle down into the EB-2 category.  The government is also seeing increased upgradedemand, where previously approved EB-3s are now being re-field as EB-2s.
New Final ActionDate for EB-4 for El Salvador, Guatemala and Honduras
The usual sight ofthese countries appearing on the Visa Bulletin is because of demand for EB-4 SpecialImmigrant Juvenile (SIJS) applicants. While this means retrogression for these categories, it should have noimpact on the traditional EB-1, EB-2, or EB-3 categories in other countries.
EB-2 and EB-3China
It will likely benecessary to retrogress these categories due to increasing demand for theseimmigrant visas.

USCIS CONFIRMS 236,000 H-1B PETITIONS WERE FILED

USCISannouncedon April 7, 2016, that it has received 236,000 H-1B cap-subject petitions,which is slightly more than the 233,000 H-1B cap-subject petitions that were receivedin 2015.  USCIS is in the process ofrunning the H-1B lottery.  USCIS willbegin premium processing for H-1B cap cases no later than May 16, 2016.

USCISwill continue to accept and process petitions that are otherwise exempt fromthe cap. Petitions filed on behalf of current H-1B workers who have beencounted previously against the cap. USCIS will continue to accept and processpetitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

MAY 2016 VISA BULLETIN

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

May 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 01SEP12 22NOV08 C C
3rd 15FEB16 15AUG13 01SEP04 15FEB16 01AUG08
MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains at Feb 15, 2016, jsut 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: Neither Chinese category moved this month.  This May Visa Bulletin included a note on Chinese EB categories:

CHINA E3:  There has been an extremely large increase in Employment Third preference applicant demand in recent weeks.  This is likely due to the “downgrading” of status by applicants who had originally filed in the Employment Second preference.  This has resulted in the Third preference final action date being held for the month of May.  Continued heavy demand for numbers will require a retrogression of this date for June to hold number use within the FY-2016 annual limit.

India: EB-2 and EB-3 moved ahead a few weeks.

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.

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 REACHES FY 2017 H-1B CAP

In a surprise to no-one, U.S.Citizenship and Immigration Services (USCIS) has reached the congressionallymandated H-1B cap of 85,000 visas for fiscal year (FY) 2017.
Asin the last few years, USCIS will use a computer-generated process (H-1Blottery) to randomly select H-1B petition “winners”.  The agency will reject and return filing feesfor all unselected cap-subject petitions.
USCIS’press release indicates that it cannot yet determine when it will conductthe random selection process.  USCIS willbeginpremium processing for H-1B cap-subject petitions requesting premiumprocessing no later than May 11, 2015.
Internationalworkers who are working in the U.S. on an H-1B visa with another cap-subjectemployer are not subject 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.

Likewise,H-1B extensions and amendments are also not subject to the H-1B cap.  MU Law recently posted a blog on alternativesto the H-1B cap, whichyou can access here.

OPTIONS IF YOU LOSE THE H-1B LOTTERY

The H-1B cap openedon April 1, 2016.  On April 7, 2016, orshortly thereafter, the USCIS will announce that it has received more than85,000 H-1B petitions, which is the H-1B cap limit.  MU Law believes that the USCIS will reportsthat at least 200,000 H-1B petitions will have been filed, and perhaps as manyas 250,000.  As a result, the USCIS willhold an H-1Blottery.
The H-1B cap is clearlya drain on the US economy.  Nonetheless,until Congress acts to help the American economy and raises the H-1B cap, theH-1B lottery will result in many otherwise qualified H-1B workers having toconsider alternative visa options. Hereare some options:
  • Those that have hadan H-1B in the past are often not counted against the H-1B cap.  If you have had an H-1B approved in the past,you should contact your attorney, even if you have never entered the US andactivated the H-1B.
  • H-1B cap-exemptemployers can file for H-1Bs at any time. An H-B cap-exempt employer is (1) a University; or (2) a non-profit thatis related to a University, such as a University Hospital; or (3) A Non-Profitresearch organization; or (4) A Non-Profit government research organization.
  • Nationals of thesecountries have alternative visa categories that are similar to the H-1B, butare not subject to the H-1B cap: Canada, Mexico, Australia, Chile, andSingapore.  If you hold a passport fromany of these countries you can seek a visa such as a TN-1, E-3, or H-1B1.
  • OPT for F-1 Students.  The F-1 rules liberally allow students towork in the US.  Many students can nowwork for 24 month, after their graduation from a US college.
  • Green Card filingscan often be done quickly.  Allcategories except India EB-2, EB-3, China EB-2, EB-3 and Philippine EB-3 havevery favorable processing times.  Most applicantswho qualify for categories other than these should expect their green cards in 12-18months.
  • The L-1 visa (MultinationalExecutive, Managers, and Specialized Knowledge workers), the O-1 (ExtraordinaryAbility) and the E-1/E-2 (Treaty Trader and Treat Investor) offer some optionsfor high level and critical employees. 


    NEW USCIS MEMO: PORTING YOUR I-485 UNDER AC21

    On March 18, 2016 the USCIS issuednew guidance regarding when a foreign national can port his/her I-485.  Under the American Competitiveness in theTwenty-First Century Act (AC21) a foreign national can change his/her employeror job during the green card process once the I-485 has been pending for 180day or more.

    When changing positions, the greencard applicant and their new employer, must file a letter with the USCISconfirming the new employer is taking over the green card case, agrees to paythe prevailing wage, and that the new position is the same or similar to theposition described in the green card application.

    The USCIS will consider thetotality of the circumstances when determining if the green card job and thenew job are the same or similar.  Specifically,the March 18 memo describes how Immigration Officers can review the occupationcodes assigned to both jobs by the Department of Labor when determining if thetwo jobs are the same or similar.

    Evidence that the positions are thesame or similar can include:
    • The job duties ofboth positions;
    • The skills,expertise, education, training, licenses or certifications specificallyrequired to perform each job;
    • The wages offeredfor each job; and
    • Any othermaterial and credible evidence relevant to the determination.
    Green card applicants can also porttheir I-485s when, in their new position, they are primarily responsible formanaging the same or similar function of their original job.  For example, if a PT is promoted to Senior PTand supervises other PTs and PTAs.  It isalso acceptable for the applicant to manage workers in a different occupationif the change in position is a normal career progression.  For instance, if an OT is promoted to RehabManager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs,and others.

    LAST CHANCE FOR 2016 H-1Bs

    The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Thursday April 7, 2015.  Below are some key points to keep in mind about this year’s H-1B cap:

    -The USCIS makes no accommodation for delays caused by couriers.  Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 1, which is the first day that H-1B petitions are accepted.

    -Premium Processing Service (PPS) may not start until May 11, 2016, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.  
    -Last year it was until June before most H-1B lottery winners and losers found out about the outcome of their lottery selection. 

    HISTORICAL H-1B USAGE AND AN EDUCATED GUESS ON HOW MANY WILL BE FILED THIS YEAR

    This year’s H-1Bfiling date of April 1, 2016 is coming fast.  MU Law predicts thatH-1B petitioners certainly will file in excess of 200,000 petitions during theH-1B cap window of April 1-7, 2016.   Last year’s record filingtotal of 233,000 will likely be exceeded. This estimate is based on conversation with clients,other employment-based immigration attorneys, and economictrends, such as the tiny unemployment rate inIT.
    When the USCIS receives more H-1B petitions than slots availableit holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lotterybecause it received over three times as many H-1B petitions as slotsavailable.
    If you are considering filing an H-1B cap-subject petition, MU Lawurges you to begin that process now.
    Many healthcare professions ordinarily qualify for H-1B status,including Physical Therapists,Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.
    International workers who are working in the U.S. on an H-1B visawith another cap-subject employer are not subject to H-1B cap. These cases arecommonly referred to as “H-1B transfer” cases and may be filed at any timethroughout the year.
    Employees that need a “cap-subject” H-1B include:
    * International students working on an EAD card underan OPT or CPT program after having attendeda U.S. school
    * International employees working on a TN may need an H-1B filedfor them in order for them to pursue a permanent residency (green card) case
    * Prospective international employees in another visa status e.g.H-4, L-2, J-1, F-1
    * H-1B workers with a cap exempt organization
    * Prospective international 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 (expected)

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