Uncategorized Archives | Page 57 of 107

June 19, 2015
Uncategorized

TALE OF A JOURNEY DOCUMENTARY

The European Union recently funded a documentary, Tale of a Journey, which tells the stories of Philippine nurses as they migrate to Europe. Challenges such as missing families, learning new languages, and learning new cultures are explored.

The documentary gives a 360 degree view, as it also tells the stories of nurses who have returned to Philippines after spending sometime in both Europe and America. It also includes interveiws with government officials and recruiters. It is worth a watch for anyone intersted in this topic.

June 15, 2015
Uncategorized

DOL UPDATING PERM

The USDepartment of Labor (DOL) announced on June 2, 2015 that it will begin theprocess of updating the PERM regulations. The PERM regulations govern the labor certification process, the first phaseof most green card cases.

The PERMprocess requires the employer to test the US labor market in an effort toprotect the US labor force. PERM isrequired for Occupational Therapists, Medical Technologists, Physicians, SpeechLanguage Pathologists, and many other occupations. PERM is not required for Registered Nurses orPhysical Therapists, as the DOL has determined that there is a nationalshortage of RNs and PTs in the US and therefore the labor market does not needto be tested.

The DOL hasnot comprehensively examined or modified the PERM process since 2004. Much haschanged in the way employers recruit workers since 2004. The DOL has received ongoing feedback thatthe existing PERM requirements frequently do not align with worker or industryneeds and practices. For instance, the PERM process requires the employer toadvertise in the print newspaper; most workers now use online job searchengines to find open positions.

The DOL isengaging in new rulemaking that will consider options to modernize the PERMprogram to be more responsive to changes in the national workforce, to furtheralign the program design with the objectives of the US immigration system, andto enhance the integrity of the labor certification process.

June 10, 2015
Uncategorized

JULY 2015 VISA BULLETIN

The Department of State has just released the July 2015 Visa Bulletin. This is the tenth Visa Bulletin of the 2015 Fiscal Year.

The retrogression of the Philippines EB-3 continues. To insure that no Philippine EB-3 visas are issued, the Department of State has made the Philippine EB-3 number Unavailable. This means that no Philippine EB-3 visas can be issued this fiscal year. The next fiscal year starts on October 1, 2015.

This cannot be good news, although MU still believes that the dates will progress with the start of FY 2016. Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3.

India EB-2 remained at October 1, 2008. India EB-3 only moved up one week to February 1, 2004. All Other EB-3 moved ahead two months to April 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved another five months to October 1, 2013 and EB-3 remained at September 1, 2011.

Employment- Based	All Other	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01OCT13	1OCT08	C	C
3rd	15APR15	01SEP11	01FEB04	01APR15	–U–

June 3, 2015
Uncategorized

WHAT OTHER REASONS REQUIRE AN H-1B AMENDMENT?

Much has been discussed about the recent case Matter of Simeio Solutions where theAdministrative Appeals Office (AAO) indicated an H-1B amendment is requiredwhen an employee changes worksites from one metropolitan area to another. There are, however, other situations which requirethe filing of an H-1B amendment.

USCIS regulations indicate that an employer must file an amendedpetition to reflect any “material changes” in the terms and conditions ofemployment or training. While not filing an amendedpetition can subject both the employer and employee to penalties and liabilities,neither the USCIS or the DOL have defined “materialchange.“

Changes in employment which mayrequire an amended H-1B petition include:

Change from full-time to part-timeemployment or vice versa
Reduction in wages, particularlywhen it affects the prevailing wage
Change of more than 50% in jobduties, for instance, Occupational Therapist to Director of Rehabilitation

Insignificant alterations in jobduties and normal incremental changes in the upward direction do not require anH-1B amendment. An H-1B amendment is notrequired for:

Promotion when job duties aremostly the same, for instance, Physical Therapist to Senior Physical Therapist
Regular merit-based or cost ofliving pay increases
Moving to a new office in the samemetropolitan area
Short-term placement at a new worklocation for less than 30 days per year
Non-worksite locations, forinstance when an H-1B worker attends an professional conference
Change in the employer’s name whennone of the terms and conditions of employment change

When an H-1B employee’s employmentchanges, please contact ouroffice. Together, MU Law and theemployer should decide if the change is material and if an H-1B amendment isrequired.

June 1, 2015
Uncategorized

USCIS SUED OVER INTERIM EADs

Bylaw the USCIS must either adjudicate EAD applications within 90 days or issueinterim employment authorization. OnFriday May 26, 2015, anationwide class action lawsuit was filed against the USCIS for unlawfullydelaying the adjudication of applications for Employment AuthorizationDocuments (EADs). The lawsuit allegesthat USCIS’s failed to timely adjudicate applications for EADs and to issueinterim employment authorization, in violation of USCIS law.

Variousclasses of individuals may qualify for an EAD, including: individuals with apending I-485 (green card) application, students on OPT, and L-2, J-2, and H-4spouses. While the USCIS has not indicated as such, the volume ofEAD applications being received may be causing delays. Due to the recent retrogression of thePhilippines EB3 category and the new H4 EAD rule, the USCIS has certainly beenreceiving a large number of EAD applications.

It is important to note that unlike an H-1B extension,which if filed before the H expiration extends the work authorization while theextension case is pending, an application for an EAD extension must be approvedbefore the current EAD expires to avoid a gap in work authorization. Individuals applying to extend their EADsshould apply a minimum of 90 days before the expiration of the EAD card. Individuals must have a valid EAD in hand tobe authorized to work in the US.

May 27, 2015
Uncategorized

ALTERNATIVE VISA OPTIONS TO THE H-1B PROGRAM, PART ONE: F-1

U.S. Citizenship andImmigration Services (USCIS) recently announced it received approximately233,000 H-1B petitions for the 2016 H-1B CAP filing. This figure includes bothregular H-1B cap-subject petitions and H-1B petitions filed for the advanceddegree exemption. Not surprisingly, this is the largest number of H-1B cap-subject petitionsever received. From a numbers standpoint, we can expect about 36% of the H-1Bswill be accepted and 64% will be returned.

Since more than half of the petitions are returned, U.S. employers must seekalternative visa options to the H-1B program. In this three–partseries blog post, we will discuss in detail the available alternatives. Each of these visas has specific legal requirementsthat the employer and employee must meet to qualify. The options discussedshould be considered on a case by case basis, to determine the best fit for theemployer and employee.

In the first blog of thisthree-part series, we discuss the options available to F-1 student visa holdersincluding continued employment under STEM OPT or returning to pursue a higherdegree.

Optional Practical Training (OPT) including STEM OPT

OptionalPractical Training (OPT) is temporary employment that is directly related to anF-1 student’s major area of study. Under the current rules, an F-1 student canbe authorized to receive up to a total of 12 months of practical trainingeither before (pre-) and/or after (post-) completion of studies. Certainscience, technology, engineering and mathematics (STEM) degree holders may beeligible for an additional one time 17 month extension of OPT time. To beeligible for the STEM OPT, the attained degree must be one of the STEMDesignated Degree Programs (see STEM Designated Degree Programs) to determine if thedegree is eligible and the employer must be registered with the government’s”E-Verify” Program.

Higher Degree Level

An F-1 student can enroll in a new,higher degree-seeking program at a SEVIS certified university. Note thatstudents may be authorized up to a total of 12 months of full-time practicaltraining at each educational level (e.g., undergraduate, graduate andpost-graduate). The student can also be authorized for Curricular PracticalTraining (CPT) at each new degree level. The CPT option should be exercisedwith caution and discussed by the student with the university’s designatedschool official. In a more recent trend, MU noticed the USCIS narrowly focus on F-1 students and whether thestudent maintained status during period(s) of authorized employment such asCPT.

In the second blog of thisthree-part series, we will discuss the H-1B CAP exemption options includingquota requirements, who qualifies and how some states have designed innovateideas to take advantage of this option.

May 22, 2015
Uncategorized

H-1B AMENDMENT NEEDED FOR ALL GEOGRAPHICAL CHANGES, EVEN IF BEFORE APRIL 9, 2015

The USCIS has just released Guidanceon its webpage further clarifying the SimeioSolutions case from April 2015.

The most impactful part of the Guidanceis that the USCIS is now requiring all H-1B employers to file an H-1B amendmentfor employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision.

SimeioSolutions holds that a new H-1B petition is required whenever an H-1Bworker changes his geographical location, if that geographical change requiresa new Labor Condition Application (LCA). Typically geographical changes outside of a metropolitan statistical arearequire a new LCA.

The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision. This new interpretation reaches back in time, requiringall prior geographical moves to file amended H-1Bs.

Accordingly all MU Law clients areencouraged to fully review their H-1B roster and confirm that the H-1B employee’scurrent worksite matches the worksite listed on the employee’s I-129petition. If the H-1B employee’s currentworksite does not match the worksite listed on the employee’s I-129 petition,then we should prepare and file an amended H-1B petition.

Thankfully, the Guidance is givingall H-1B employers a 90 day grace period, until August 19, 2015, to comply withthis latest Guidance interpretation.

The new USCIS Guidance also confirmsexisting safe harbors within the law. Anamended H-1B does not have to be filed when:

-The geographical move is within thesame metropolitan statistical area.

-Under certaincircumstances, you may place an H-1B employee at a new job location for up to30 days, and in some cases 60 days (where the employee is still based at theoriginal location), without obtaining a new LCA.

-The job is“peripatetic in nature,” such as situations where their primary job is at onelocation but they occasionally travel for short periods to other locations “ona casual, short-term basis, which can be recurring but not excessive.

May 20, 2015
Uncategorized

USCIS TO SUSPEND H-1 EXT PREMIUM

USCIS will temporarilysuspend premium processing for all H-1B Extension of Stay petitions fromMay 26, 2015 until July 27, 2015. USCISwill continue to premium process all other H-1B petitions during this period,such as petitions subject to the H-1B cap. USCIS will refund the premium processing fee if:

-A petitioner filedH-1B petitions prior to May 26, 2015, using the premium processing service, and

-USCIS did not acton the case within the 15-calendar-day period.

This temporarysuspension will allow USCIS to implement the EmploymentAuthorization for Certain H-4 Spouses final rule in a timely manner andadjudicate applications for employment authorization filed by H-4 nonimmigrantsunder the new regulations.

May 19, 2015
Uncategorized

DOS EXPECTS PHILS EB-3 RETROGRESSED UNTIL OCT 2015

In AILA’s latest “Check-inwith Charlie” Department of State’s Charlie Oppenheim explains that thePhilippine retrogression is being caused by “heavy demand”. He says that other categories such asWorldwide EB-2 and Other Worker EB-3 are also in great demand.

Because of thisdemand he does not expect that the Philippine EB-3 date will move forward at anytime in Fiscal Year 2015 (Oct 1, 2014 – Sept 30, 2015). The date may even cut-off this summer. Charlie’s phrase is “further corrective action”.

There remains optimismthat there will be a progression of Philippine EB-3 dates with FY 2016, whichbegins October 1, 2015. From 2008-2014,barely any Philippine EB-3 visa applications were filed, mainly because of therecessed US economy. It therefore standsto reason that any jump in dates that reaches 2008, will progress forward to2014.

Accordingly, MU Lawexpects that the Philippine EB-3 number will return to 2014 before the end ofthis year. However if Philippine EB-3demand continues the Philippine EB-3 number may eventually retrogressnegatively, although it is too early to specifically estimate Visa Bulletindates in calendar year 2016.

One note of interest from a recent DC Circuit case, Xie v. Kerry. The DC Circuit told the DOS to clarify how it applies the Visa Bulletin. The outcome of this remanded case could conceivably alter the way that the Visa Bulletin is compiled.

May 14, 2015
Uncategorized

HOW TO APPLY FOR CAP GAP

Students with workauthorization under OPT (optional practical training) whose H-1B has beenchosen under the cap are eligible for cap-gap work authorization. Manystudents graduating from US colleges and universities with degrees in physicaltherapy, occupational therapy, speech language pathology, medical technology,and other allied health professions are eligible for OPT and work on OPT aftergraduation.

When the student isapproved for OPT, the student receives an employment authorization document(EAD). This is a plastic card, much likea driver’s license, which shows the student’s photo and biographic information. An OPT EAD Card is pictured here:

The validity dates of theOPT work authorization are listed near the bottom of the card. In the case above, the student’s OPT workauthorization expires on July 14. Assuming this student’s H-1B petition has been selected under the H-1Bcap, the student is eligible to apply for cap gap work authorization to extendhis OPT work authorization from July 15 to October 1 when the H-1B begins.

The cap gap extension isnot automatic. The student shouldpresent the H-1B receipt notice showing his/her H-1B has been selected to theinternational student office at his/her school. The school will issue anew I-20 to the student showing the OPT has been extended to October 1. Employers should use this new I-20 tore-verify the student’s I-9 work authorization through October 1.

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