H-1B CAP OPENS APRIL 2

The Fiscal Year 2013 (FY2013) H-1B cap season will begin on Monday April 2, 2012. For the last several years the H-1B cap season has averaged nine months before all 65,000 H-1B regular cap slots were used. Because of improvements in the US economy, MU Law expects that the 65,000 H-1B regular cap slots will be used by Summer 2012, perhaps as soon as May 2012.

MU lawyers have informally polled our clients and other AILA attorneys in an attempt to gauge the duration of this year’s H-1B season. Based on these conversations, MU Law's best estimate is that the H-1B visa quota will be exhausted in June/July of 2012, although some prognosticators think it could be reached in May 2012. We will make regular updates to our client base as the USCIS releases information about cap usage.

Additionally, MU Law expects that the 20,000 H-1B US Masters Cap will be used quicker than the H-1B regular cap. This is not a great concern because any US Masters Graduates who do not obtain a slot in the H-1B US Masters cap can apply for an H-1B regular cap slot.

Any cap-subject H-1B petition that is filed after April 1 allows the Beneficiary to begin working in H-1B status on October 1, 2012. Students who hold F-1 OPT student status can remain with valid work authorization through October 1, 2012, provided that their H-1B Petition is field and accepted by USCIS.

Because of the uncertainty in these estimates, MU Law urges all clients immediately to initiate H-1B cap-subject petitions. H-1B cap-subject petitions include:

· New overseas H-1B hires

· Beneficiaries on another nonimmigrant status, such as H-4, L-1, or F-1.

· H-1B workers who hold H-1B cap-exempt status by virtue of the filing of the H-1B with a University or research facility.

MAY VISA BULLETIN WILL RETROGRESS FOR SOME EB-2

The Department of State’s point man on the Visa Bulletin has confirmed for AILA that India and China EB-2 will retrogress to August 15, 2007, a dramatic retrogression from the recent progression of China and India EB-2 number. Charlie Oppenheim, Chief, DOS Immigrant Visa Control & Reporting, says that demand for the EB-2 numbers is high due to the progression of EB-2 dates from November 2011 – April 2012.

USCIS has informed Mr. Oppenheim that they will continue to “preadjudicate” adjustment applications received through April. The “preadjudicated” cases will be held by the State Department in the “pending” demand file. That way, the cases will be ready in October, or earlier, if the current number use pattern changes, and they are needed at the end of this fiscal year to assure utilization of the full employment-based permanent resident visa allocation.

The Department of State historically has progressed dates to stimulate demand in the visa numbers. That practice came under some criticism during the Summer 2007 “VisaGate” incident when the DOS progressed to ‘current’ all categories in response to the USCIS’ inability to approve any I-485, Applications for Adjustment of Status. This flooded the USCIS with 300,000 Applications in the Summer 2007, forcing USCIS to begin approving I-485 Applications. Since VisaGate the progression of visa number has been measured, until this accelerated EB-2 progression began in November 2011.

TB AWARENESS CAMPAIGN BY US EMBASSY - MANILA

The US Embassy in Manila has begun an awareness campaign about Tuberculosis (TB). About fifteen percent of all visa applications are denied or delayed as a result of high TB numbers. TB is the number one medical reason for the denial or delay of a visa application. All immigrant applicants must prove that they have been immunized against the major communicable diseases.

According to the Embassy, the Philippines has the ninth-highest TB rate in the world. TB is the sixth leading cause of death. About one hundred Filipinos die of the disease every day. If you are living in Manila and plan on immigrating to the US, please be sure to have your immunization records up-to-date. Indeed, even if you do not plan on coming to the US, it is a good idea to protect yourself.

The Embassy has posted a video on its Facebook page by Project Blue Balloons, which highlights this tragic disease.

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EB-2 EXPECTED TO RETROGRESS

For the last several months, the EB-2 immigrant (green card) visa numbers have progressed in a dramatic way. Indian and Chinese nationals with priority dates of 01MAY2010 or earlier are eligible to file their I-485 Applications. The November 2011 Visa Bulletin's EB-2 dates for India and China were 01NOV2007. This progression of priority dates has allowed many Indian and Chinese natives to file their I-485, Applications for Adjustment of Status.

This steady movement of priority dates is expected to end on either May 1, 2012 or June 1, 2012. At the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim, Chief, Visa Control and Reporting at DOS, informed AILA Members that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. This reflects the fact that many I-485 Applications have been filed since November 2011, taking advantage of these favorable priority dates.

All EB-2 Chinese and Indian natives with priority dates of 01MAY2010 of earlier are encouraged to file their I-485 Applications for Adjustment of Status before the inevitable retrogression in May or June.

APRIL 2012 VISA BULLETIN

The Department of State has just released the April 2012 Visa Bulletin.

This Visa Bulletin did not show any progress in the EB-2 categories, after several months of big progressions. The EB-3 categories had their usual modest gains of a few weeks in all categories.

April 2012 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01MAY10	01MAY10	Current
EB-3	08APR06	01MAR05	01SEP02	08APR06

PREPARING FOR AND PROJECTING THE H-1B CAP

The Fiscal Year 2013 (FY2013) H-1B cap season will begin on April 1, 2012. Last year (FY2012), the H-1B cap moved very slowly -- only 8,000 H-1Bs were received in April 2011. The slow pace continued through the spring and summer. As the US economy improved, the H-1B pace quickened. The H-1B cap was reached in November 2011.

On a histocial basis, FY2012 moved very slowly. In FY 2011, which began April 1, 2010, the USCIS had receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there were about 40,000 H-1Bs receipted in by USCIS through May 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

It is unknown what the FY2013 H-1B demand will be. In speaking with some clients, MU expects the H-1B cap to move quicker than last year. However, MU expects that the H-1B cap will remain open until at least mid-summer.

If you are considering filing an H-1B cap-subject petition, MU urges you to begin that process now.

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

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.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

RETROGRESSION AND THE US NURSE IMMIGRATION PROCESS

MU receives many emails about the nurse immigration process and retrogression. We have prepared this article explaining these issues.

Part One

Registered Nurses must clear many hurdles before they are eligible for a US immigrant visa (Green card). The nurse must get into a good university and work hard to take and pass their exams. They must then have their education evaluated against the American standard.

Once that happens the nurse must pass the US licensing exam: the National Council Licensure Examination (NCLEX). This is the same examination taken by thousands of US nurses every year. Foreign-trained nurses must also take and pass an English fluency examination. All of these items must be evaluated by an independent organization, the Commission on Graduates of Foreign Nursing Schools (CGFNS).

Lastly, the nurse must find a US employer who is willing to extend an offer of employment where the wage is not less than the average of similarly employed nurses. Once the offer is extended and the nurse accepts the offer, she is fully eligible to have a US EB-3 green card filed on her behalf.

The lawyer works with the nurse, the employer, and the recruiter to properly file a green card petition. This establishes the nurse’s “priority date.” The green card petition is reviewed by a qualified USCIS officer who may ask for further evidence in the event that there are additional data needed to approve the petition. Finally, the EB-3 green card petition approved!

And then the nurse waits. And waits. And waits. Presently the US Consulates and Embassies are allowed to issue an EB-3 green card to a nurse whose green card petition was filed with a priority date from early 2006 – essentially a six year wait.