UPDATE! USCIS I-797 APPROVAL NOTICES

Last week, MU Law notified its clients of a USCIS policy change, in which the USCIS was sending I-797 Approval Notices to Petitioners and Beneficiaries, instead of sending these documents to the Petitioners and Beneficiaries' designated representatives and lawyers.

In a quick break from this policy, USCIS Director Mayorkas announced that the USCIS will revert back to the long-standing policy of sending I-797 Approval Notices to the Petitioners and Beneficiaries' representatives and lawyers. MU Law applauds this reversion of policy. The USCIS is often lambasted for ill-thought out policy. It is therefore only right to highlight when they make the right decision.

NEW H-1B WHEN A CHANGE IN GEOGRAPHICAL LOCATION?

Staffing companies provide value in industries where there is a shortage of qualified labor because the ability for flexible labor is great. Similarly, high rates of immigration are common in occupations where there are shortages of labor.

It is therefore understandable that many companies that employ large numbers of immigrants are staffing companies. The H-1B visa is the most common visa vehicle for these workers. Healthcare staffing companies often employ Physical Therapists and Occupational Therapists via the H-1B visa.

These companies often then have to move these workers to new geographical locations as dictated by client’s needs. While a new or amended H-1B visa is required when there is a material change in an employee’s job duties, a new or amended H-1B visa traditionally is unnecessary when an H-1B worker moves to a new geographical location.

As Musillo Unkenholt explained in an April 2010 letter to a public inquiry request by the USCIS,

In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

In AILA’s notes from an October 5 meeting with the USCIS, the USCIS implied that it may soon require a new or amended H-1B to be filed when there is a change in the worker's geographical location. The USCIS full comments were:

USCIS RESPONSE: This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review. We will take AILA’s views into consideration when finalizing the policy on what circumstances would require an amended petition to be filed with USCIS.

There is no rationale for a change in policy on this issue other than to create additional administrative burdens on H-1B Petitioners. Musillo Unkenholt hopes that the USCIS instead focuses its efforts on those who abuse the immigration system.

H-1B CAP COUNT: 41,000

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 41,000 H-1B cap-subject Petitions have been receipted by USCIS as of October 7, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

NOVEMBER 2011 VISA BULLETIN

The Department of State has just released the November 2011 Visa Bulletin. The November Visa Bulletin is the second Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about four months.

The Visa Bulletin contained a discussion about future EB-2 movement:

The November Employment-based Second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

Nov 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01NOV07	01NOV07	Current
EB-3	22DEC05	22AUG04	22JUL02	22DEC05

GENERATIONS HEALTHCARE SUED BY DOJ

The US Department of Justice filed suit against Generations Healthcare, a Skilled Nursing Facility, on Friday September 30, 2011. The lawsuit alleges that Generations Healthcare engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on job applicants.

The DOJ’s press release says that its investigation uncovered evidence that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status. These documents were not required of native-born US citizens.

MU Law clients and friends are reminded that US employers have to comply with the Form I-9 when hiring new employees. The Form I-9 identifies a variety of documents that may be used by job applications to prove valid work authorization and identity; it does not mandate that any specific document must be used.