FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT COULD PASS SOON

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year.  On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress.  One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT).  Sen. Lee is bill’s lead sponsor.

The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:

Changes to the Green Card Quota and Process

• Eliminate the per-country visa caps on employment-based workers over a three-year phase in period.  This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
• Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker.  This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families.  These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out.  This provides a great relief to long-retrogressed families.
• There is a 4,400 visa carve-out for Schedule A workers.  As with current law, their immediate family members also take visas at the same time.  This provision will end in 2026.
• There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US.  Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses.  This provision ends in nine years.

 Changes to the H-1B visa

• Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
• H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
• Elimination of the B-1 in Lieu of H-1B business visa rule.
• Additional wage protection for H-1B workers.
• Additional protections for H-1B whistleblowers. 

Next Steps

Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today.  The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year.  After that the President will need to sign the Bill into law, which is expected.

H-1B CAP SEASON 2020: MUST FILE MARCH 1-20, 2020

The USCIS has confirmed that it will use an electronic pre-registration system for 2020 (Fiscal Year 2021).  Under this program, H-1B petitioners and beneficiaries must be registered between March 1-20, 2020. Accordingly, all MU clients should begin to identify the beneficiaries that they would like to sponsor for the 2020 H-1B cap season. 

The USCIS has not yet announced the specific data that will be required for registration, although they have assured the public that the required information will be “basic.”  There will be a nominal $10 fee for each registration.  After the New Year, MU will hold a webinar teleconference to outline the process for our clients.

PWDs WILL CONTINUE TO TAKE 4 MONTHS (AND OTHER NOTES FROM DOL)

On November 5, 2019 the Department of Labor held a presentation and gave updates to a number of their programs.  AILA has reported on the update.  The updates include:

-DOL expects that PWD processing times will remain at 4 months, despite its goal to get the processing time down to 90 days.

-The Form 9141 (PWD) has been updated and posted to the OMB webpage.  The expectation is that it will go live in mid-2020. Until that time, the current Form 9141 remains valid, even though it lists an expired 10/31/2019 date.

-With the October launch of LCAs on the PERM system, iCert will soon be decommissioned.

-At some point PERM will move to the FLAG system, although it is not expected until 2021 at the earliest.

DECEMBER 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the December 2019 Visa Bulletin. This is the third Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

December 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	15JUN18	15MAY17	01JAN15	01JUN18
2nd	C	22JUN15	15MAY09	C
3rd	C	01NOV15	01JAN09	01MAR18

MU Law Analysis

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: EB-2 did progress by three months.  The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly   equal. 

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines:  We remain surprised by the slow progress of EB-3.  The DOS indicated that demand for Adjust of Status cases is tamping down the promotion of dates.  Of course, Philippines EB-3 uses much less Adjust of Status visas than other categories, which makes this explanation suspect.  We still find the EB-3 priority date to be too conservative, but at this point we are no longer predicting as rosy progressions in early 2020.

MU IS MOVING OUR OFFICE – WE WILL BE CLOSED NOV 14, 15

Musillo Unkenholt will be moving its offices on Thursday November 14 and Friday November 15.  Accordingly, the law office will be closed over those two days.

Our new office will be at 302 W. Third Street.  The official address is:

Musillo Unkenholt LLC

302 West Third Street, Suite 710

Cincinnati, OH 45202

All government agencies have been notified about the move, including USCIS and DOL.  We do not expect any interruption in mail or service.

We are very excited for the move.  We have outgrown our current space.  Our new space is 50% larger than our current space.

If you are in the Cincinnati area on December 13, please let us know.  We will be having an open house in the afternoon.

FEDERAL JUDGE BLOCKS TRUMP’S HEALTH INSURANCE RULE

Over the weekend, a federal judge blocked Pres. Trump’s health insurance rule for immigrant visa applicants.  Under the rule, all intending immigrants would have had to prove that they were going to enroll in a qualifying health insurance plan within 30 days of entering the US. 

There is no timetable for how long the temporary restraining order will remain in effect.

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DECEMBER 2, 2019

On October 30, 2019 the USCIS announced a proposed rule to increase the premium processing fee.  The premium processing fee will be raised from $1,410 to $1,440.  The fee increase will go into effect on December 2, 2019.

 

Premium processing is an optional service currently authorized for certain types of cases, notably filing an H-1B or an I-140. The system allows petitioners to request 15 day processing of these cases if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The USCIS indicates this increase of the premium processing fee reflects the full amount of inflation from the implementation of the premium processing fee in June 2001 through August 2019 based on the Consumer Price Index for all Urban Consumers (CPI-U).

NFAP: H-1B DENIAL RATES NEARLY 25%

According to a new study by the National Foundation for American Policy, H-1B denial rates for cap-subject petitions has risen “from 6% in FY 2015 to 24% through the third quarter of FY 2019”.  Perhaps more amazing, 12% of extension/amendment H-1Bs are also being denied. 

This NFAP study updates prior NFAP H-1B studies from April 2019 and August 2019.  All of the NFAP data is collected from the USCIS Employer Data hub.

These denials have a grave impact on US healthcare, especially in rural areas who are increasingly relying on foreign-trained labor to augment incredible staffing shortage.  Among the most popular occupations for H-1Bs are: Physical Therapist, Occupational Therapists, and Medical Technologists.

MU will be holding a webinar on Wednesday November 13, 2019 at 2PM / 11AM PT. This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  AGENDA AND REGISTER HERE

NOVEMBER 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the November 2019 Visa Bulletin. This is the second Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

November 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	01JUN18	01FEB17	01JAN15	01JUN18
2nd	C	15MAR15	13MAY09	C
3rd	C	01NOV15	01JAN09	01FEB18

  

MU Law Analysis (all references are to Table A unless noted)

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: The EB-2 and EB-3 remain inverted, in spite of the fact that China EB-3 did not progress at all.  Over the course of FY2020 we expect EB-2 to catch up to EB-3 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates remain inverted.  There was no material progress in either category.  We expect very little progress in either category in future months.

Philippines: As we expected, EB-3 leapt forward almost 4 months.  We still find the implementation of the EB-3 priority date to be too conservative.  MU expects that this date will continue to rapidly move in the coming months, and could return to current in early 2020.

ANALYSIS OF CURRENT RFE TRENDS AND HOW TO GET YOUR CASE APPROVED

Don't forget to register for our free webinar happening Wednesday November 13, 2019 at 2PM / 11AM PT. We hope to see you there! Click the REGISTER link on the right to sign up!

Register Here

This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.  

  

Webinar Agenda:

1.   H-1B issues

·       Specialty Occupation

·       Availability of Work

·       Right to Control

2.   I-140 Issues

·       Bona Fide Offer

·       Ability to Pay

3.   I-485 Issues

·       Maintenance of Status

o   F-1 to Green Card

o   H-1B to Green Card

4.   Q&A

PLEASE JOIN US!

NEW “PUBLIC CHARGE” RULE SUSPENDED

On Friday, October 11, 2019 three Federal Judges in three separate cases stopped the USCIS from implementing the new public charge rule, which included using the new versions of the I-485, I-129, and I-539 as well as the implementation of the new form I-944.  Until final decisions in these three cases are issued or the injunction is lifted, USCIS will accept the older versions of the forms. 

In addition, late last week, the Department of State created their own public charge rule to mimic the new USCIS rule.  According to the latest information, the Department of State rule will still go into effect on October 15, 2019 as planned.  Those obtaining their green card through an Embassy interview will likely need additional documentation to provide at the Embassy interview.  Consult with your MU attorney in this regard.

PRESIDENTIAL PROCLAMATION REGARDING IMMIGRANTS AND HEALTH INSURANCE

On October 4, 2019, the President issued a proclamation stating individuals entering the US from abroad on a green card must now be covered by approved health insurance within 30 days of entering the US.  This new rule will take effect on November 3, 2019.

• Approved health insurance includes:
• An employer-sponsored plan
• An unsubsidized plan offered in a US State’s individual market
• A short-term plan effective for at least a year or until the foreign national plans to leave the US for extended travel
• A catastrophic plan
• A family member’s plan
• A military healthcare plan, such as TriCare
• A Medicare plan
• Any other plan that is deemed adequate by the Secretary of Health and Human Services.

Applicants must be able to present evidence to the Embassy Officer reviewing their case that the applicant will have health insurance before the issuance of the visa to enter the US.

This new rule applies to those seeking entry to the US on a green card for the first time.  Children who are under the age of 18 and entering the US with their parents are exempt from this rule. 

This rule does not apply to those who have received a green card in the past and are returning to the US after a trip abroad.  This rule also does not apply to those entering the US on a nonimmigrant visa, e.g. H-1B, TN, L-1, for F-1. 

IMPLEMENTATION OF THE NEW “PUBLIC CHARGE” RULE – DRAFT USCIS FORM I-944

On August 14, 2019 the Department of Homeland Security (DHS) announced a new “public charge” rule; this rule will go into effect on October 15, 2019 and directly impacts all individuals applying for a green card. 

At this point the Trump Administration has only released a draft version of the new Form I-944.  USCIS has not yet released any final forms or documents.  Accordingly, we are advising clients to try and file as many cases before October 15 because it is impossible to say with certainty what the new forms will require.

Background

A public charge is someone who is dependent on the government, through benefits programs.  The Trump Administration’s new rule changes the standard by the USCIS determines whether a foreign national is likely to become a public charge.  Under the previous policy, USCIS examined whether an intending immigrant was primarily dependent on public benefits.  Under the new rule, USCIS will examine whether immigrants are likely at any time to become a public charge, using a multi-factor test. 

USCIS is now required to consider a range of factors when making a determination if the foreign national visa applicant is likely to become a pubic charge.  These factors include:

a.  Receipt of a public benefit for more than 12 months in the aggregate within a 36 month period

b.   Age

c.    Health

d.   Family status

e.   Education and skills

f.     Assets, resources, and financial status

New Form I-944

A draft version of the form I-944, Declaration of Self-Sufficiency, has been released by the USCIS.  In addition to the I-944, new versions of the several other immigration forms required for green card applications, H-1Bs, and H-4s will be updated.  The USCIS has not yet published the final version of the I-944 and the other revised forms.

The draft version of the I-944 requires all green card applicants to provide detailed information about his or her household.  The applicant’s household includes anyone listed as a dependent on the applicant’s tax return and anyone for whom the applicant provides 50% or more support.  The form I-944 asks for:

·        The name, date of birth, and relationship to the applicant of each member of the household

·        The education and occupational skills for an applicant who does not have an approved I-140; for applicants who do have an approved I-140, the applicant must provide the I-140 receipt number

·        The income of the applicant and all household members

·        A list of any assets held by household members that can be converted into cash within 12 months, e.g. checking and savings accounts, stocks and bonds, retirement accounts, etc.

·        A list of any liabilities or debts held by household members, e.g. mortgages, car loans, credit card debt, unpaid taxes, etc.

·        The credit report and credit score of all applicants

·        The terms and type of health insurance policy held by each applicant

·        The application, receipt, or certification of public benefits for each applicant, including enrollment, disenrollment, and withdrawing of public benefits

The adjudicating Officer will review all of the above listed information when making a determination as to whether the green card applicant is likely to become a public charge.  At this time, it is unclear if all of the items listed above will be required of all applicants, even when the applicant’s income meets a certain threshold or the applicant has guaranteed employment in the United States because of an approved I-140.

Conclusion

Policy experts forecast that this rule will likely be applied inconsistently, cause fewer legal immigrants to enter the United States, and cause further delays in the processing of immigration applications by the USCIS.  MU will send additional information once the immigration forms have been finalized and greater clarity is provided by the USCIS.

INCREASING SITE VISITS FOR STEM OPTs

The American Immigration Lawyers Association (AILA) has received reports of SEVP officers conducting site visits to confirm the details of students’ STEM OPT employment and that the Petitioner is in compliance with their attestations on the I-983.

Visits can be either random or based on a complaint. For random visits, SEVP officers have typically contacted the STEM OPT employee’s manager 1-2 days before the visit is to be conducted. For a complaint, there will likely be no notice given by the SEVP officer.

From reported visits, the visits generally last 1-2 hours at the STEM OPT worksite. According to the DHS’s website, the visits will address:

1.     How the salary of the STEM OPT employee is determined;

2.     Whether there are sufficient resources from the Petitioner to provide supervision and training of the employee; and

3.     Whether the Petitioner is maintaining an employer-employee relationship with the employee.

It is important to review your STEM OPT employee’s I-983 forms and ensure that the employer team (especially the manager listed on the I-983) and the employee are familiar with the details of employment and the training plan.

UPDATE ON THE FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT

After several weeks of contentious negotiations, a deal has been struck to preserve nurse immigration into the US through the Fairness for High-Skilled Immigrants Act (H.R. 1044).  The AAIHR, of which Musillo Unkenholt is the only law firm member, led the fight to preserve these visas.  The AAIHR issued this press release in which they thanked Senators Perdue (R-GA), Paul (R-KY),and Young (R-IN) who were instrumental in crafting the deal.

The deal is still subject to two hurdles:

First, any Senator can block the deal.  While most Senators have signed off on the deal there may still be some Senators who are holding out.  Senator Durbin (D-IL) remains a block on the bill. In this video, Sen. Durbin explains his reasoning for holding out.

Second, the deal is still subject to approval by President Trump, who is expected to sign the bill into law if it can get past the Senate.

If the two hurdles are not overcome, the status quo stays in place, which means 12-15-year delays for many EB-2 and EB-3 Indians.

If the bill goes through, the new law will:

First, over a three-year phase-in, eliminate the per-country cap on employment based green cards.  This would be great news for Indian-born immigrants, halving their retrogression to 7-8 years.

Second, preserve 4,400 visas for Schedule A occupations – Registered Nurses and Physical Therapists.  Additionally, 2,800 visas will be used for derivatives (spouses and children) of RNs and PTs.  Unfortunately, this means that there will be a retrogression for spouses and children of RNs and PTs starting in early 2020.  This derivative retrogression is the price that others Senators demanded in order for the deal to be struck.

Third, there will be additional burdens on H-1Bs in all industries.  The details of the additional H-1B rules are forthcoming.

Again, the bill is not law.  Negotiations remain ongoing between Sen Lee (R-UT), who is the Fairness Act’s champion, and Sen. Durbin.

H-4/ EAD RULE WILL CONTINUE UNTIL SPRING 2020 AT THE “EARLIEST”

In a filing with a federal judge, USCIS indicated that it has delayed the revocation of the H-4/EAD rule.  USCIS says that “the earliest possible publication date” of the revocation is spring 2020.  This is good news for H-4 /EAD holders. 

There are rumors that the USCIS has badly miscalculated the negative impact on the US economy, which is why the revocation of the rule has been ongoing for two years.  Rules of this type must be approved by the Office of Management and Budget, which likely has called into question USCIS’ calculations.

Even if a rule is published by USCIS, it will have to offer the rule to the public for notice and comment, a process that will likely receive much scrutiny and could further delay the Trump Administration’s attempts at revocation.

OCTOBER 2019 VISA BULLETIN: ANALYSIS

The Department of State has just issued the October 2019 Visa Bulletin. This is the first Visa Bulletin of Fiscal Year 2020. This blog post analyzes this month's Visa Bulletin. 

October 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	22APR18	01NOV16	01JAN15	22APR18
2nd	C	01JAN15	12MAY09	C
3rd	C	01NOV15	01JAN09	15OCT17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

Employment- based	All Other	CHINA	INDIA	PHILIPPINES
1st	01JUL19	01SEP17	15MAR17	01JUL19
2nd	C	01AUG16	01JUL09	C
3rd	C	01MAR17	01FEB10	C

MU Law Analysis (all references are to Table A unless noted)

All Other: Although All Other EB-1 has a slight retrogression, the EB-2 and EB-3 categories remained current and are expected to remain current for the foreseeable future.

China: The EB-2 and EB-3 inverted again, as EB-3 has a favorable priority date than EB-2.  Over the course of FY2020 we expect EB-3 to catch up to EB-2 and the two categories to stay roughly equal.

India: As with China, the EB-2 and EB-3 dates have inverted.  We expect very little progress in either category, although EB-2 may move slightly quicker than EB-3 in future months.

Philippines: We find the implementation of the 15OCT17 priority date puzzling.  This is almost surely a too conservative projection by DOS.  MU expects that this date will rapidly move in the coming months, and could return to current in early 2020.

MUSILLO UNKENHOLT WELCOMES LINDA ASH AND ELIZA STONE

Musillo Unkenholt (MU) is pleased to welcome Linda Ash and Eliza Stone to the law firm.  Ash and Stone met more than a decade ago while working at a large regional law firm in Cincinnati.  In 2017, they formed Ash & Stone, LLP where they practiced primarily business-based immigration law. 

Born in Canada, Ash has a twenty-nine year legal career and has lived in Argentina and Iran, as well as Canada and the US.  Ash provides both foreign and domestic employers, across a wide range of industries, with immigration advice and expertise.  Ash is a graduate of the University of Arizona and Salmon P. Chase College of Law.  Stone started her practice at an established regional law firm before becoming in-house counsel for an international company and later a large university.  Stone provides employment immigration advice to clients of varying sizes.  Stone is fluent in both Polish and German and graduated from New York University and the University of Cincinnati College of Law.

MU recently celebrated its ten year anniversary.  MU attorneys practice almost exclusively employment-based immigration and the firm’s clients include large public and private companies as well as small start-up, entrepreneurial ventures. 

Analysis of Current RFE Trends And How To Get Your Case Approved

MU Law will be hosting a free webinar for our clients and friends on Wednesday November 13, 2019 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

Register Here

This webinar will provide an analysis of current RFE trends and how to beat the USCIS’s RFE and get your case approved.   

Webinar Agenda:

1.   H-1B issues

·       Specialty Occupation

·       Availability of Work

·       Right to Control

2.   I-140 Issues

·       Bona Fide Offer

·       Ability to Pay

3.   I-485 Issues

·       Maintenance of Status

o   F-1 to Green Card

o   H-1B to Green Card

4.   Q&A

PLEASE JOIN US!