MU Law Blog on Nurse and Allied Healthcare Immigration

MU Law Blog on Nurse and Allied Healthcare Immigration OCTOBER 2016 VISA BULLETIN Posted: 09 Sep 2016 06:29 AM PDT The Department of State has just issued the October 2016 Visa Bulletin.  This is the first Visa Bulletin of Fiscal Year 2017. As the fiscal year begins we are able to make some educated guesses at where the Visa Bulletin will be in the future. October 2016 Visa Bulletin   Final Action Dates Applications with these dates may be approved for their Green Card (Permanent Residency card).   Employ- ment based All Charge- ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 12FEB12 15JAN07 C C 3rd 01JUN16 22JAN13 15MAR05 01JUN16 01DEC10   MU Law Analysis   All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases a June 2016 date is effectively Current. China:   As expected, these dates moved forward 2+ years.  Unusually, the China EB-3 has a more favorable date than EB-2, although this phenomenon has happened often for China as a result of many Chinese EB-3 workers “upgrading” their applications to EB-2. India:  EB-2 India had a notable progression from last month.  It will be interesting to see how this date moves forward.  In the Summer of 2007 hundreds of thousands of I-485 Applications were filed a result of VisaGate.  As a result of that bulk of filings, this number could slow in the forthcoming months. EB-3 had its usual one month forward movement.   Mexico: Mirrors All Other in all aspects. Philippines: EB-3 moved ahead by another six months.  The Phillippine EB-3 number essentially cleaned out all 2010 EB-3 visas in just two months.  This is what we have expected.  (Our note from May 2016: “MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.”). We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in...

American Immigration Council and AILA File Suit against USCIS over H-1B Lottery

Every year, USCIS approves 65,000 cap-subject H-1B visas and an additional 20,000 H-1B visas for candidates with advanced degrees.  Every year for the past ten years, the number of applicants for these visas has exceeded the cap.  When this happens, CIS initiates a lottery that utilizes a computer-generated randomized selection process to determine which petitions get reviewed and which get returned to the sender. The H-1B lottery has always been shrouded in mystery.  Despite claims of commitment to transparency, CIS has not been forthcoming with information about the mechanisms of this lottery.  There is no way to hold CIS accountable for this process and possible flaws or unfairness resulting from it.  There is no way to tell whether this process even holds up to statutory standards without the ability to see and review it.  For this reason, a lawsuit has been brought against CIS and the US Department of Homeland Security by the American Immigration Council and the American Immigration Lawyers Association with the purpose to seek information about the inner workings of the H-1B lottery process. H-1B visas are dual-purpose, non-immigrant visas that allow highly skilled foreign nationals with a US bachelor’s degree or its equivalent or higher to live and work in the United States for increments of three years to fill specialized job positions.  Demand for highly skilled workers with highly specialized skills and knowledge in the rapidly expanding US IT industry has been a driving force for the number of H-1B petitions filed growing every year.  CIS must continue to accept H-1B petitions for at least one business week before closing its doors.  The past two years, the cap has been exceeded within five days of when CIS begins accepting petitions. While the lawsuit is a good step in the right direction to bring some insight and accountability to the mysterious H-1B lottery process, there is little that can currently be done by H-1B candidates and their employers and lawyers to affect whether or not the petition makes the lottery.  Besides filing on April First, of course. “The internal workings of the H-1B lottery system are out of all of our control or understanding for now,” International education expert and...

USCIS REACHES FY 2017 H-1B CAP

In a surprise to no-one, U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap of 85,000 visas for fiscal year (FY) 2017. As in the last few years, USCIS will use a computer-generated process (H-1B lottery) to randomly select H-1B petition “winners”. The agency will reject and return filing fees for all unselected cap-subject petitions. USCIS’ press release indicates that it cannot yet determine when it will conduct the random selection process. USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 11, 2015. International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year. Likewise, H-1B extensions and amendments are also not subject to the H-1B cap. MU Law recently posted a blog on alternatives to the H-1B cap, which you can access...

AUGUST 2015 VISA BULLETIN

The Department of State has just released the August 2015 Visa Bulletin. This is the eleventh Visa Bulletin of the 2015 Fiscal Year. The bizarre retrogression of the Philippines EB-3 continues. Although the July Visa Bulletin showed that Philippine EB-3 was unavailable, this month shows a date: June 1, 2004. This means that there are a few available visas for this fiscal year. Please read our blog post from May 19 for deeper analysis on the state of the Philippine EB-3. All Other EB-3 is essentially current, with a date of July 15, 2015. This is great news for all EB-3s, other than Philippine, China, and India. India EB-2 remained at October 1, 2008. On the other hand, India EB-3 leapt ahead. It is now at June 2004. China EB-2 improved another two and a half months to December 15, 2013 and EB-3 remained at September 1, 2011. The story was much different for China EB-3, which retrogressed back to 2004. Just a few months ago, China EB-3 had actually progressed further than EB-2. There is now a nearly ten year gap between these two categories. Employment- Based All Other CHINA – mainland born INDIA MEXICO PHILIPPINES 1st C C C C C 2nd C 15DEC13 1OCT08 C C 3rd 15JUL15 01JUN04 01JUN04 15JUL15 01JUN2004 The Visa Bulletin also included this notice: D. CHINA-MAINLAND BORN EMPLOYMENT THIRD, AND THIRD OTHER WORKER VISA AVAILABILITY There was an extremely large increase in applicant demand reported for consideration in the determination of the August cut-off dates. Therefore, it has been necessary to retrogress the Employment Third, and Third Other Worker cut-off dates to hold number use within the FY-2015 annual limit. Every effort will be made to return those categories to the previously announced July cut-off dates as quickly as possible under the FY-2016 annual limits. Those limits will take effect October 1,...

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...

REMINDER: H-4 EADs CAN BE FILED 5/26

Earlier this year USCIS announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015. The full regulation was also published. We are still awaiting a FAQ from USCIS, which was promised in the spring. An MU Law FAQ is at the end of this blog post. Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances. (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization. Ordinarily, I-765 Applications are approved in 90-120 days. Accordingly, H-4 spouses who qualify should be able to begin working in September 2015. Musillo Unkenholt H-4 FAQ Can I file before May 26, 2015? No. The USCIS will not accept EAD applications until May 26, 2015. How long will it take the USCIS to process the EAD Application? Traditionally EAD Applications take 90-120 days until approval. Can I work upon the filing of the EAD Application? No. The EAD must be approved? Who qualifies for the new H-4 EAD card? Certain H-4 spouses may file for the new H-4 EAD. Children who hold H-4 status are ineligible for the EAD. Which H-4 spouses may file for an EAD? In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder. The USCIS elected to apply the rule first set forth in Section 106 of AC21. The H-1B worker must either: A. Hold an approved I-140, Petition for Alien Worker. The approved I-140 does not need to be from his present employer; or B. Have a priority date that is at least one year old. A priority date can be established by the filing of a PERM Application or a Form I-140. May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140? No. The USCIS looks to the H-1B worker to meet...