EB2 WILL BE CURRENT OCTOBER 1, 2012

The Department of State’s Visa Office head Charlie Oppenheim met with the American Immigration Lawyers Association on June 19, 2012 to discuss the recent retrogression of EB-2 dates in All Other Countries, including the Philippines. Mr. Oppenheim has confirmed that he expects that the All Other Countries EB2 date will return to Current on October 1, 2012, which is the beginning of US Fiscal Year 2013.

Readers should note that the All Other EB-2 date shortly will become Unavailable. This will not impact the Current date on October 1, 2012.

Mr. Oppenheim also confirmed that EB-2 China and India will be August/September 2007 on October 1, 2012. He expects that the India and China EB-2 dates will remain in 2007 for the first several months of FY 2013.

US v. ARIZONA: WHAT DOES IT MEAN FOR EMPLOYERS AND EMPLOYEES?

On Monday,the Supreme Court of the US (SCOTUS) released its long-anticipated decision in Arizona v. US.The state of Arizona had sought to usurp the federal government’s authority toregulate immigration. SCOTUS largely declawed Arizona’s wildcat attempts.

As a resultof this decision, MU suggests that foreign nationals in Arizona should carrydriver’s licenses. SCOTUS specificallysaid that drivers licenses are valid proof of lawful status. If you do notdrive, you should contact your local Bureau of Motor Vehicles, which can issueyou a state identification non-driving license.

If you reside in other states where Arizona-style laws have been enacted, such as Iowa, Alabama,and Utah, you are also encouraged to get a driver’s license or state-issuedidentification. If your driver's licensehas expired and has not yet been renewed, please carry your I-797 Notice ofAction (Approval Notice) and/or Receipt Notice.

Foreignnationals are reminded that they are required to carry validpassports while in the US.

All of Arizona’s attempts to regulate immigration were struck down,save one. For employers and employees living and working in Arizona these arethe key points:

• Arizona cannot create its own state-based crime of “illegally working”. Only the federal government can create a crime of “illegally working”. And the federal government has. Of course, all US employers – Arizona and elsewhere – must comply with the Form I-9 rules.

• Arizona police officials cannot randomly stop and ask immigrants for papers. This is an important point and one that has not been well-articulated in the media.

• In order for an Arizona police officer to ask to see their immigration documents, the police officer must have first have a reasonable suspicion that the person is illegal in the US. That suspicion cannot be based on their race, color of their skin, or their country of their birth. A reasonable suspicion may exist if, for instance, the police officer is tipped off by a credible informant that someone is illegally living/working in Arizona.

Arizona v. US has several other applications that areinteresting, although not directly related to employment:

• SCOTUS has confirmed that immigration is a federal legal area. This likely will tamp down various state efforts to regulate immigrant employment.

• Arizona officials are no longer allowed to create their own Arizona alien registration system, even if it is based on the federal system. Only the federal government can create and regulate a federal alien registration system.

• SCOTUS spent a lot of time on the immigration documents section. SCOTUS indicated that it would not tolerate future Arizona police officers who abused their power and based their suspicions on race, skin color, and origin. If there is abuse by Arizona police officers in the future, SCOTUS may bar Arizona officers from having the right to ever ask for immigration documents.

EB2 FOR THE PHYSICAL THERAPIST

The USCIS has been wildly inconsistent in adjudicating petitions for EB-2 Physical Therapists. But they should not be. The law is straightforward.

If the position requires an Advanced Degree, then EB-2 Petition should be approved. An Advanced Degree is a US Master’s Degree, the foreign equivalent of a US Master Degree, or a Bachelors Degree and five years of progressive work experience.

If the FCCPT or another credible educational evaluator finds that the Beneficiary’s foreign education is equal to a US Masters Degree, then the EB-2 Petition should be approved, since all US employers effectively require an Advanced degree as their minimum requirement for entry into the petition.

Many foreign schools issue a diploma that says “Bachelors Degree in Physical Therapy”. Many of these degree are, in fact, equal to US Masters Degrees and therefore approvable as EB-2 Petitions.

Unfortunately, the USCIS Texas Service Center has a training issue and some USCIS officers are denying these approvable EB-2 Petitions. Their flawed analysis is that since the degree is titled Bachelors Degree, the petition is inappropriate as an EB-2. This is wrong. The legal question isn’t the title of the degree but the US educational equivalence.

The most frustrating part of Physical Therapy EB-2 Petitions is the maddening inconsistency caused by the USCIS training issue. Virtually identical petitions will get different USCIS Decision: some denied and some approved. MU Law has several of these petitions on appeal and we are working with AILA to remedy this flawed training problem.

For now, the safer approach is to use the Bachelors Degree plus five years’ experience path to a Physical Therapist EB-2 Petition.

EB-2 RETROGRESSION FAQ

Many MU clients are perplexed by the announced July 1 retrogression of the EB-2 visa category. In this blog post, we will address some common questions that we have seen. If you have additional ones that you would like to see addressed, please post your questions as a comment or ask the question on the MU Facebook page.

CAN I FILE MY I-485, ADJUSTMENT OF STATUS PRIOR TO JULY 1?

In most instances, yes. I-485, Adjustments of Status may be filed for EB-2 petitions prior to July 1. Please let us know if you wish to do so. Any I-140 that has been approved or is currently pending qualifies. Because of the inconsistent decision-making by USCIS for EB-2 Masters-equivalent petitions, we may advise against it in any one case. We will be addressing this inconsistency in an upcoming blog posting.

HOW LONG WILL THIS RETROGRESSION LAST?

Our sense is that the retrogression will only last until October 1, 2012, at which point the new US fiscal year begins and more visas are allowed to be processed. What remains unknown is whether the retrogression will reappear in the fall of 2012. This will not be known until the Department of State assess just how great the demand is for EB-2 visas.

SHOULD I UPGRADE MY I-140 TO PREMIUM PROCESSING?

Probably not. An upgrade to premium processing is expensive ($1,225) and only guarantees that the USCIS will review your I-140 in 15 days, which takes us beyond the July 1 retrogression date.

CAN I FILE MY I-485 BUT NOT FILE MY SPOUSE/CHILDREN’S I-485?

Yes, these can be filed separately. Some applicants may want to just file their I-485 Adjustments of Status and then file their spouse/children’s I-485 Adjustments of Status at a later date. The spouse/children’s priority date must be current at the time that you desire to file their I-485.

JULY 2012 VISA BULLETIN AND THE FUTURE OF EB-2

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

In the June Visa Bulletin, the Department of State made the India and China EB-2 categories unavailable (indicated by a "U", in the chart below), as had been expected for some time. Now, the DOS has made the All Other and Philippine EB-2 categories retrogressed to January 1, 2009. Plainly the Department of State and the USCIS are having troubling anticipating demand for visa numbers, which is leading to these enormous swings in visa dates.

July 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	01JAN09	U	U	01JAN09
EB-3	22JUL06	22SEP05	22SEP02	08JUN06

So what will happen in future months to EB-2. MU Law believes that the EB-2 will continue to be retrogressed until October 1, 2012. The August or September 2012 Visa Bulletin likely will become unavailable at some point, although it should be temporarily.

Come October 2012, MU Law expects that All Other EB-2 (including the Philippines) will become Current, or nearly Current. October 1, 2012 is the start of the next US Fiscal Year and more immigrant visas are available for processing. The NVC may continue to process EB-2 petitions in the later summer, anticipating more favorable dates in the fall.

If you have an immigrant visa interview through June 30, you should continue to attend that interview, and you will be given a visa provided that you qualify and pass the interview process.

AILA WEEK

MU attorneys Chris Musillo, Cindy Unkenholt, and Maria Schneider will heading to Nashville for this year's AILA Annual Convention. AILA Annual is a great time to catch up with old friends, meet new ones, and discuss interesting case strategies. We may be posting light this week, but we will surely update once the H-1B cap officially is reached. Our sense is that it either has already been reached or it will be reached early this week.

H-1B CAP COUNT: 55,600

The H-1B cap count is now at 55,600 H-1B cap-subject petitions have been received as of June 1, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 8.

MU clients are encouraged to initiate their H-1B Petitions immediately in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

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

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	55,600	6/1/2012	6/8/2012
US Masters	20,000	18,700	6/1/2012	6/8/2012

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