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! 

US CITIZENSHIP AND IMMIGRATION SERVICE ANNOUNCES FEE FOR PRE-REGISTRATION FOR H-1BS

On September 4, 2019 the USCIS announced a new proposed rule that requires employers preparing to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration the employer submits to USCIS.  The USCIS is funded by fees collected for filings and plans to use the registration fees to cover the costs of implementing the new pre-registration system.

In January 2019 the USCIS introduced an electronic registration requirement for employers seeking to file H-1B cap-subject petitions.  Under the January 2019 rule, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then submit the actual H-1B petition.  

After considering public feedback, USCIS decided to suspend the electronic pre-registration requirement until the April 2020 cap season in order to complete user testing and ensure the system and process are fully functional.