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OPT STEM EXTENSIONS EXTENDED

The USCIS now has until May 10, 2016 tofinish its review of the more than 50,000 public comments submitted in responseto the new STEM OPT Extension regulations and to issue a new STEM Program.  Until May 10, 2016, the old OPT STEMextension program remains in effect. 
In August 2015 the US District Court forWashington, DC ruled that the USCIS STEM OPT Extension program was invalidbecause the USCIS had not followed the proper procedure when STEM Extensionprogram was created.  Before creating a new program, the law requires thatthe USCIS must first give the public time to comment on the program proposal. The USCIS did not allow the proper public comment period when creating the STEMExtension program.
In August 2015 the federal judge ruled toabolish the STEM Extension program, but the judge also found that abolishingthe program immediately would cause a hardship to F-1 students currently onOPT.  The judge allowed the USCIS six months until February 2016 tore-create the program using the proper procedure.  The six month windowwas set to expire on February 12, 2016.
The USCIS re-issued the STEM Extensionprogram last fall and received over 50,000 comments from the public.  InDecember 2015 the USCIS requested additional time to review the publiccomments.  The judge has now granted the USCIS an additional three monthsto complete its review of the public comments.  The USCIS has until May10, 2016 to complete its review of the public comments and enact the new STEMExtension program.

H-1B TELECONFERENCE FEB 4, 2016

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016
In anticipation of the H-1B cap filing date of April 1,2016, MU Law will be holding a free teleconference for our clients and friendson February 4, 2016 at 2PM / 11AM PT.  Interested clients and friendsshould email MU’s Annalisa Smith,who will register you for the teleconference.

Last year the H-1B cap wasreached in the first week.  We expect that the demand will be even greaterthis year.  It is imperative that all H-1B cap-subject petitions arefilled on April 1, 2016.

H-1B TeleconferenceAgenda

  • H-1B Cap Basics and Projections
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?
  • Hot issues:  
    • CPT / OPT maintenance
    • NIV maintenance
    • Cap-gap for F-1s
    • H4 EAD rule
    • STEM OPT Lawsuit
    • Increased filing fees for 50/50 employers
  • Top 10 things H-1B employers can do to stay compliant
  • Legislative Update
    • DACA/DAPA to the Supreme Court
    • I-140 EAD
    • Presidential Election: What we can expect from President Trump
  • Q&A

Pleasecontact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

USCIS TO ALLOW DUAL INTENT, 240-DAY WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

Starting February16, 2016, the USCIS will make life much easier for H-1B1, CW-1 and E-3 visastatus holders thanks to a newregulation that has just been posted to the Federal Register.  The originalproposed regulation was published in April 2015.

The new regulationwill grant extended work authorization to these visa status holders who timelyfile their visa status extension petitions. These changes will bring these three categories into harmony withsimilar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dualintent will remove an unnecessary legal headache when these visa status holdersapply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa statusholders must be extremely careful when preparing their green card petitions orrisk running afoul of the immigrant intent rule.  Strictly speaking, thesevisa status holders cannot intend to file for US Permanent Residency.

Granting extendedwork authorization is also a welcome for these visa status holders.  Under the current interpretation these workerswere forced to stop working unless their visa status extension was approvedprior to the expiration of the initial visa status.  When the new rule is effective, those inH-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency oftheir visa status extension petition, even if the extension petition is notapproved before the expiration of the prior status.  This workauthorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visacategories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa statusfor Singaporean and Chilean nationals.  The E-3 functions similarly for Australiannationals.  These visas were approved byCongress when trade deals were struck with these three countries.  The advantage of these visas is that they arenot subject to the H-1B cap.  There arequotas for these categories, although none of the quotas have veer beenreached.

FEBRUARY 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

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

February 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 01MAR12 01AUG08 C C
3rd 01OCT15 01OCT12 15JUN04 01OCT15 08JAN08


MU Law Analysis

All: These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 progressed by one month. EB-3 has progressed almost one year in just the last few months.  This is great news for this category.

India: EB-2 jumped again. Four months ago it was 01MAY05. This represents a three-plus year movement in just four months.  This trend may continue. EB-3 moved four weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months.  We expect it to get into 2009 in the by this spring or 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 01JAN13 01JUL09 C C
3rd 01JAN16 01OCT13 01JUL05 01JAN16 01JAN10

MU Law Analysis

The Dates of Filing chart did not materially change from October or November 2015. This is not a surprise. The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin.

Our analysis is the same as described in our October 10, 2015 blog post.

8TH CIRCUIT GREATLY CURTAILS DOL INVESTIGATORY AUTHORITY IN LCA INVESTIGATIONS

The Greater Missouri Medical Pro-Care Providers H-1B case is the most noteworthyH-1B since the 2000 decision, Defesnor v. Meissner. The latest decisionin Greater Missouri greatly curtailsthe DOL’s investigative powers and significantly reduces liability concerns forH-1B employers.
                                                                 
The DOL has traditionally used anyH-1B employees’ complaint to investigate a company’s entire H-1B program.  I have personally defended H-1B employers in abouta dozen matters where the DOL has used this technique to extract significant finesfrom H-1B employers for technical alleged violations.  In most of these instances, the H-1B employerhas paid off the DOL instead of spending considerable fees and time defendingitself.  With this latest decision, thisDOL method should stop.
The 8th Circuit heldthat the underlying Congressional statue, “expressly ties the [DOL’s} initial investigativeauthority to the complaint and those specific allegations.”  (Page 10 of the decision, linked above).  The DOL must have “reasonable cause” toextend the scope of an investigation. 
It is illustrative to understandwhat happened in Greater Missouri.  The H-1B employer, GMM, hired several Physicaland Occupational Therapists.  In June2006, one of the H-1B Therapists filed a Complaint that eventually found itsway to the DOL.  In response to thisComplaint the DOL open a company-wide investigation and requested documentationon every H-1B employee on GMM’s roster. Based on this documentation, the DOL ordered GMM to pay $382,890 in backwages to H-1B employees.
The case meandered through the administrativecourts for years.  The case found its wayto the Administrative Review Board, which issued a decisionin January 2014.  In that decision, theARB confirmed that that the DOL’s investigative authority could include all H-1Bemployees, however “if the H-1B violation underlying the claim occurred morethan 12 months before a complaint was filed, any remedies for that violationare barred.”  This finding reduced the backwage fine to $106,786.   
A dissent by one of the three ARBjudges opined that the DOL’s investigative authority was limited to just the Complainant’sallegations.  This dissent was referencedby the 8th Circuit in the most recent decision.

If this decision holds firm, theDOL’s investigative powers will be constrained to the matter at hand.

CONGRESS AGAIN RAISES USCIS FILING FEES FOR 50/50 EMPLOYERS

The H-1B and L-1 “50/50”filing fees are back and larger than ever. Last night, the House Republican leadership posted the fulltext of the Consolidated Appropriations Bill of 2016.  The Act revives the additional H-1B and L-1  filing fees for “50/50 employers”.  A “50/50 employer is one has more than 50employees , where more than 50 percent of the employees hold H-1B or L-1status.  Upon the forthcoming enactmentof this new Act, the new combined filing and fraud fees for 50/50 employerswill be H-1B: $4,000 and L-1: $4,500.  This fee will apply to all H-1Bs and L-1s, even if it is an extension ofstatus.  

ILWhas a nice table of other immigration provisions that are included in the Act,such as H-2, Physicians, E-Verify, R-1, EB-5, and Visa Waivers.  Most of these are routine extensions of existingprograms that had recently ended.

In 2010, Congresspassed the original “50/50” increased filing fee rule.  PL111-230 raised H-1B and L-1 filing fees for employers who have over 50employees with more than 50% of these employees in H-1B or L-1 status.  H-1B petitions were assessed an additional$2,000 in filing fees.  L-1 petitionerswere assessed $2,250 in additional filing fees.  PL 111-230 was originally to end in 2014, butwas re-authorized until September 30, 2015. Itdid sunset on September 30, 2015. For the last three months, there has been no increased filing fee for50/50 employers.

JAN 2016 VISA BULLETIN AND ANALYSIS

The Department ofState has just issued the January2016 Visa Bulletin.  This is thefourth Visa Bulletin of Fiscal Year 2016. 
January 2016 Visa Bulletin
Final ActionDates

Applications withthese 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
01FEB12
01FEB08
C
C
3rd
01OCT15
01JUL12
15MAY04
01OCT15
01NOV07
MU Law Analysis

All: These dates continueto be very favorable.  We expect that AllOther dates will continue to be positive for the foreseeable future.
China: EB-2 did notchange. EB-3 has progressed six months Nov 2015 Visa Bulletin, which was01JAN12.
India: EB-2 jumpedagain. Three months ago it was 01MAY05. In Nov 2015’s Visa Bulletin it was01AUG06.  In December 2015 it was01JUN07.  This trend may continue. EB-3moved two weeks.  Our sense is that EB3will only move by weeks in the forthcoming months.
Mexico: Mirrors AllOther in all aspects.
Philippines: EB-3moved ahead four months. MU Law believes that Philippines EB-3 will steadily moveforward in the coming months.

Dates of Filing

Applications with these priority dates may file their 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
01JAN13
01JUL09
C
C
3rd
01JAN16
01OCT13
01JUL05
01JAN16
01JAN10
MU Law Analysis
The Dates of Filingchart did not materially change from October or November 2015. This is not asurprise. The USCIS and Department of State have been sued in response to the September2015 revised Visa Bulletin.
Our analysis is thesame as described in our October10, 2015 blog post.

H-1B AMENDMENTS REQUIRED BY JAN 15, 2016

H-1B employers are reminded of theUSCIS’ revised FinalGuidance in the Simeio Solutions decision. Although the decision was not to beapplied retroactively, H-1B amendments still must be filed in certain instances:
Date of H-1B employee’s move
Action
On or before April 9, 2015
No amended H-1B is needed.
April 9 – August 19, 2015
Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015
Must file an amended H-1B once LCA is certified.
Accordingly, MU Law advises that if anemployee moved between April 9 – August 19, 2015, an H-1B Amendment MUST befiled before January 15, 2016.
The revised Final Guidancereconfirmed that an amended H-1B petition is NOT required if the geographicalmove is within an “area of intended employment.”  An “area of intended employment”is generally the same as a Metropolitan Statistical Area.  Likewise, anamended H-1B petition is NOT required if the H-1B employee is attendingtraining sessions, seminars, conferences, etc. of a short duration.

NCLEX NUMBERS LEVELING AFTER YEARS OF DECLINE

The latest NCLEX Statisticsshow that the decline in internationally-educated nurses taking the NCLEX examinationhas abated.  Through the third quarter of2015, 16,685 firsttime internationally-educated nurses have taken the NCLEX.  That is up slightly  from 2014 when 15,207 firsttime internationally-educated nurses had taken the NCLEX through the thirdquarter. 
The pass rates offirst time NCLEX internationally-educated nurses are rising slightly too.  In 2014 28.8% of first time internationally-educatednurses passed the exam.  In 2015, thathas risen to 31.5%.  All told, about4,500 first time internationally-educated nurses are annually taking andpassing the exam.  Another 2,000-2,500 orso repeat test takers are also annually passing the exam.  Together, almost 7,000 internationally-educatednurses are annually taking and passing the exam.
These numbers are considerablylower than the peak years of last decade. In 2006, 20,907 internationally educated RNs passed the NCLEXexam. In 2007, the volume jumped; 22,827 internationally educated nurses passedthe NCLEX exam. With the onset of retrogression, 2008 saw a slight decline;18,905 internationally educated RNs passed the exam.

NEARLY TWO-THIRDS OF BABY BOOMER NURSES CONSIDERING RETIREMENT

AMN Healthcare, oneof the largest healthcare staffing companies in the US, has recently issued asurvey that shows that almost two out of every three baby boomer nurses are contemplatingrecruitment.  A summaryof the survey is on the Staffing Industry Analyst’s webpage.
The main take-away:
Of those nursesover 54 who are considering retirement, 62% plan to retire within the nextthree years. Additionally, 21% of nurses over age 54 said they will switch topart time work.

Paralleling thismassive downturn in US healthcare workers is an expected boom in America’s demandfor healthcare services.  The number ofuninsured hasdropped by millions since the passage of the Affordable Car Act(Obamacare).  Foreign labor must be partof this answer.  Unfortunately thecurrent immigration scheme makes it very difficult to navigate a reasonable strategy.

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About Us

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)

info@muimmigration.com

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