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November 16, 2015
Uncategorized

SEN. GRASSLEY RE-INTRODUCES RESTRICTIVE H-1B BILL

Sens. Grassley(R-IA) and Durbin (D-IL) have reproposed a bill aimed at curbing H-1B usage. The bill creates an H-1B system that greatlyexpands the regulatory environment surrounding H-1B visas. Sen. Grassley’s bill makes a number of changes to the H-1B system.

Sen. Grassley believesthat the H-1B visa is used to replace US workers. He has long cited a 2008 USCIS Report as evidence of fraud in theH-1B program. To date, exactlyzero prosecutions have resulted from this flimsy report.

Sen. Grassley proposedbill sets forth a system where employers would have to registerand re-register with various government agencies. It would limit certain employers from hiringH-1B workers and increase enforcement.

Sen. Grassley’sbill will surely restrict H-1B workers. It is not clear that it will help US workers. Anycredible study points out that the H-1Busage mirrors the US employment rate. TheEconomist has picked up on this finding. A better approach is to ask whyUS workers no longer move for better opportunities, since most H-1B employer’svalue H-1B workers geographical flexibility.

Source: https://www.census.gov/hhes/migration/data/cps/historical/Figure%20A-1.2.png

November 10, 2015
Uncategorized

ANALYSIS OF THE DECEMBER 2015 VISA BULLETIN

The Department of State has just issued the December 2015 Visa Bulletin. Here
is MU Law’s analysis of this latest Visa Bulletin.

December 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01JUN07	C	C
3rd	01SEP15	15APR12	22APR04	01SEP15	01AUG07

MU Law Analysis
All: No change from Nov 2015 Visa Bulletin, other than a one month improvement in EB-3.
China: EB-2 did not change. EB-3 progressed a few months from Nov 2015 Visa Bulletin, which was 01JAN12.
India: EB-2 jumped again. Two months ago it was 01MAY05. In Nov 2015’s Visa Bulletin it was 01AUG06. This trend may continue. EB-3 continued its steady but slow progress.
Mexico: One month gain in EB-3.
Philippines: EB-3 moved ahead six weeks. MU Law believes that Philippines EB-3 will steadily move forward in the coming months.

Dates of Filing

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	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

The Dates of Filing chart did not 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 our explain in our October 10, 2015 blog post.

November 9, 2015
Uncategorized

USCIS E-FILING: HOW TO WASTE A BILLION DOLLARS

Today’sWashington Post outlines the USCIS’attempts to move out of the paper age and into the electronic age. After 10 years and a $1 billion, the USCIShas one form on-line, the I-90,which is used to renew a Green Card. Forthose unfamiliar with the Form I-90, it is comparable to a driver’s licenserenewal form. Ninety-nine other forms remainonly available via paper filing.

The project wasoriginally supposed to be completed by 2013 at a budget of a half-billiondollars. The USCIS now expects the programto be on-line in 2019 at a cost of $3.1 billion, although if history is anyguide it will be years beyond that at a even greater costs.

Part of the problemis the “gotcha” nature of the forms themselves, which is indicative of a tone-deafUSCIS. The forms often ask irrelevantand unnecessary questions, aimed presumably at tripping up users.

Instead of focusingon the e-filing initiative, the USCIS chooses to waste time and resources. For instance, the Simeio Solutions decision in April adds tens of thousands ofpetitions to the USCIS without any legal necessity. The entire goal of the decision seems to beto make life difficult for H-1B workers who switch job locations. There is no evidence that any legitimatepolicy goal was achieved by the decision. If anything the decision and the later multiple USCIS Memos thatattempted to clarify the decision, arecontrary to PresidentObama’s attempts to modernize US immigration policy and align it with thereal world.

A good programmanagement team would start with the essential questions before building outquestions that are not core to the adjudication of the process. A good program management team would engageusers of the forms – immigrants, companies, immigration attorneys.

Until thesestakeholders are regularly engaged, skeptics will continue to criticize. Until the administration makes it a priorityto hold USCIS officials accountable for aimless policy and bloated budgets, theUSCIS will continue its bumbling nature.

October 30, 2015
Uncategorized

SIXTEEN HOUSE REPS ASK DHS AND DOS FOR ANSWERS ON VISAGATE

Earlier this week,sixteen CongressionalHouse representatives sent a letter to Sec. Jeh Johnson (DHS) and Sec. JohnKerry (DOS) for answers related to September’s bumbled visa bulletin roll-outthat resulted in a last minute revised Visa Bulletin, just days before theOctober 1 live date.

This blog producedseveral articles on the series of events, which has been dubbed “Visa Gate” on Twitter.

Sept. 9 – NEWVISA BULLETIN ALLOWS EARLY FILING OF I-485s

Sept. 16 – MORENEWS AND ANALYSIS ON THE NEW VISA BULLETIN

Sept 26 – REVISEDVISA BULLETIN REVEALS TONE DEAF USCIS

Oct 10 – INDEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The House Member’sletter asks for the estimated number of applicants who were impacted by thelast minute revised Visa Bulletin.

Going further, theyask for DHS to consider providing EAD cards and allowing portability to thosewith approved I-140s. Both concepts wererecentlyendorsed by AILA.

October 27, 2015
Uncategorized

HEALTHCARE STAFFING EXPECTED TO GROW BY 17% IN 2016

Staffing IndustryAnalysts USStaffing Industry Forecast predicts that US healthcare staffing will growby 17% in 2016. All four healthcare staffingsub-segments: -travel nursing, per diem nursing, locum tenens and allied health,showed double digit growth in 2015.

Reasons for theincrease in staffing are many, including tightening US labor supply and Obamacareallowing previously uninsured patients to avail themselves of healthcare services. More details on the report areaccessible on their webpage.

MU Law has seen greatly increased demand for foreign-trained nurses, and Physical and Occupational Therapists in 2015, confirming this study’s conclusions.

October 21, 2015
Uncategorized

A PRIMER ON HOW AN EMPLOYER MIGHT WIN AN H-2B CASE FOR CAREGIVERS

The H-2B visa is avisa used for temporary or seasonal workers. As BALCA explained ina case published earlier this week, Inthe matter of: Absolute Home Care, the H-2B is not a flexible visa. The H-2B is not a viable option for healthcareemployers seeking to fill long term staffing shortages. An H-2B can only be used to fill staffing shortages,such as a one-time occurrence, seasonal need, peakload need or intermittentneed.

In the matter of: Absolute Home Care theemployer, Absolute Home Care, asked the DOL to certify that it had a need for twentyCaregivers for nine months, from October 2015 – June 2016. In support of its claim, Absolute Home Care,provided the DOL with evidence that it traditionally had more clients in theprior winter (January – March 2014), than in the summer months.

This argument thisdid not convince the BALCA judge for at least two reasons. First, the evidence was that the need was forthree winter months, not the nine months requested in the Application. Second, Absolute Home Care asked for 20Caregivers without documenting a single client contract substantiating the needfor the period between October 2015 – June 2016.

One bright spot isthat the judge’s opinion allows the reader to “reverse engineer” how an H-2Bmight be approvable. A successful casecould be made if the employer can show past practice evinces a seasonal need,along with specific forward-looking contracts detailing a temporary need forthe workers.

October 14, 2015
Uncategorized

USCIS TO PUBLISH ITS OWN VISA BULLETIN

USCIS has justannounced that it will publish its own Visa Bulletin Dates for Filing Visa Applications (Chart B). The USCIS’ Dates forFiling Visa Applications will be used in order to determine ifimmigrant visa applicants can file Adjustment of Status Applications.

USCIS expects thatthis chart will be published approximately one week after the publication ofthe Department of State’s Visa Bulletin. The November 2015 is expected to be published shortly.

The Department ofState’s Application Final Action Date (Chart A) chart will be used to determine whenindividuals may file their adjustment of status applications.

October 10, 2015
Uncategorized

IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The Department of State has just issued the November 2015 Visa Bulletin. The new revised Visa Bulletin had a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3. We have a detailed analysis of the Visa Bulletin at the end of this blog post.

The Department ofState now publishes two Employment-based Visa Bulletin charts each month:(1) Final Action Dates (dates when visas may finally be issued);and (2) Dates for Filing Applications (earliest dates when applicants may beable to apply).

The earlier filingof the I-485 has several direct benefits for both employers and employees:

Applicants can filefor their Employment Authorization Documents (EADs) concurrently with theirI-485. This allows Applicants to take advantage of the AC-21 rulefor same or similar employment. This also allows applicant to workat second jobs.
Applicants can filefor their Advance Paroles (APs) concurrently with their I-485. Thisallows Applicants to travel without having to obtain a new visa stamp.
Spouses ofapplicants can apply for both EADs and APs. This allows spouse’swork authorization.
Fewer H-1Bamendments and extensions should need to be filed. None of the H-1Bamendment rules apply to people who hold EADs.

November 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01AUG06	C	C
3rd	15AUG15	01JAN12	01APR04	15AUG15	15JUN07

MU Law Analysis

All: No change from Oct 2015 Visa Bulletin
China: Both EB-2 and EB-3 progressed a few months from Oct 2015 Visa Bulletin
India: EB-2 jumped from 01MAY05. This trend may continue. EB-3 continued its steady but slow progress.
Mexico: No change from Oct 2015 Visa Bulletin
Philippines: EB-3 jumped ahead six months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months.

Dates of Filing

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	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

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

The Plaintiffs lost their bid for a Temporary Restraining Order. If the Plaintiffs were successful, then the USCIS and DOS would have been forced by the judge to revert back to the original September 2015 Visa Bulletin.

The Dates of Filing chart will not change until one of three things happen. First, the Plaintiffs could be successful in their lawsuit. However the lawsuit will take many months. Witnesses will have to be deposed and documents will have to be shared. Our sense is that the earliest that the lawsuit could be complete is early 2016.

Second, the Plaintiffs and the USCIS / DOS could settle their lawsuit. Similarly, the USCIS / DOS could respond to public and private pressure to change the Dates of Filing. Several Congressional Representatives have issued statements to the agencies’ expressing their frustration with these agencies’ haphazard approach to immigration benefits.

AILA has been working behind the scenes to lobby the agencies for an accurate Dates of Filing chart. There is a sense among immigration attorneys, MU Law included, that the agencies do not really have a firm grasp of the volume of immigrant visa numbers. Our evidence for this claim is the seemingly random dates listed on visa bulletins. The pressure being exerted on the agencies may force the agencies to truly do their job and accurately project Visa Bulletin dates.

Thirdly, the numbers may compel movement. This third path may be the most realistic.

This is most likely in the Philippine EB-3 category. As we have seen with the publication of the November Visa Bulletin, the Philippine EB-3 Final Action date jumped ahead six months to June 2007. This implies that the DOS does not truly know what the demand is for Philippine EB-3 visas.

But we know what the demand is. MU Law has a very large volume of healthcare-based immigrant visa clients and we know most of heaviest users of healthcare-based immigrant visas and their attorneys. These clients and friends claim a large portion of the Philippine EB-3 visas.

Our read is that most (not all) of the Philippine EB-3 priority date recaptures from 2004-2008 have already happened. We also know that very few Philippine EB-3 immigrant visas were filed between 2009 and 2012. In other words, once the DOS moves the Philippine EB-3 date to 2009, it will have to quickly move that date to 2013.
Our prediction is that the immigrant visa volume dictates that the DOS will progress the Philippine EB-3 Dates of Filing number in the first half of 2016 and certainly no later than next summer.

October 8, 2015
Uncategorized

DHS TO CREATE FILIPINO WWII VETERANS PAROLE PROGRAM

This blog generallyfocuses on employment based immigration, especially those in the healthcare area. Today’s’ blog post is not that. Today’s blog post is focused on a new USCISveterans Parole program for Filipino WWII veterans. Since so many healthcare works are ofFilipino descent, we though that this item was worthwhile for our readership.

The new program mayenable Filipino family members to provide support and care to their agingveteran family members who are U.S. citizens or lawful permanent residents.

USCIS has merely announcedtheir intention to establish the program. It is not yet effective. Any applications received before the programis implemented may be denied. USCIS will inform the public when the applicationprocess is in place. Register to receive email USCISupdates.

October 2, 2015
Uncategorized

SUNSET OF 50/50 H-1B FILING FEES

In 2010, Congresspassed Public Law 111-230. PL111-230 raised H-1B and L-1 filing fees for employers who have over 50 employeeswith 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 assed $2,250 in additional filing fees. These additional fees did not stay with USCIS but were deposited intothe US government’s general treasury fund, ostensibly to fund border security. PL 111-230 was original to end in 2014, butwas re-authorized until September 30, 2015.

At this time, PL111-230 has not been reauthorized and so 50/50 employers no longer need to paythe additional filing fees. AILAhas confirmed that USCIS is aware of the ending of PL 111-230.

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