ELECTRONIC I-94 CARDS

USCIS and Customs and Border Security (CBP) have rolled out an automated I-94 card system effective this week.  Foreign entrants into the US via air and sea ports will no longer be given paper I-94 cards at the inspection desk.  Foreign nationals will be electronically registered by the Port of Entry officer.   This is a good step toward an all-electronic entry and exit system.

CBP has set up a dedicated webpage through which foreign nationals can review the electronic record of their entry and print out a paper copy of the I-94.  The paper copy is often needed by other federal and state agencies for immigration benefits and US drivers licenses.  One would hope that these agencies will be able to tap into the CBP system rather than relying on paper copies.

NURSES, COMPUTERS AND FUTURE JOBS

Slate’s Matt Yglesias is one of the internet’s best writers on economics.  His April 22, 2013 post explains why nursing should experience increasing demand in the near and long term, unlike many other “middle skilled” occupations.  His take-away:

An aging country is going to demand more health care services. A country that's politically committed to meeting the health care needs of the poor is going to demand more health care services. A wealthier society is going to demand more health care services.

His fellow Slate writer, Anna Reisman, who is also a physician, wrote an April 18 article in which she outlines the case for greater use of nurse practitioners and liberalized state licensing rules.  She cites an Institute of Medicine study that shows similar patient outcomes regardless of whether the patient is diagnosed by a Nurse Practitioner or Primary Care Physician. 

Yglesias takes it a step further.  He cites a recent study that concludes that computer models do a better job at predicting lung cancer patients’ treatment outcomes than doctors. 

Nurses are going to be more in demand.  They are going to need to be fully versed in technology and they are going to be even more responsible for patient outcomes.  Yglesias says it best: “with digital medical technology improving, there's going to be a broader and broader range of health care services that a well-trained nurse can provide without needing the many extra years of expensive medical education required to churn out a doctor.”

USCIS MAY TAKE UNTIL JUNE TO NOTIFY H-1B CAP WINNERS AND LOSERS

The USCIS has begun processing the 124,000 timely-field H-1B cap-subject petitions.   Because the H-1B category was oversubscribed, the USCIS will be returning approximately 15,000-20,000 H-1B petitions, after accounting for improperly filed and/or denied H-1B petitions. 

Between April 1-5 the USCIS registered each timely-field H-1B case into their system.  Each timely-filed H-1B cap-subject petition was given a filing number.  Once all 124,000 petitions were registered into the system, the USCIS randomly chose 85,000 winning petitions.  This “H-1B lottery” was held about 10 days ago.

The USCIS now has started processing winning premium processing petitions.  Contrary to incorrect internet rumors, this does not mean that premium processing petitions were given any benefit in the lottery.  The USCIS has confirmed on multiple occasions that non-premium petitions had the exact same chance of winning the H-1B lottery.

Processing of winning petitions consists of confirming proper filing fee payment and data entry of H-1B petitions onto USCIS internal computer system.  Once the H-1B petition is processed, Premium Processing adjudicators begin to assess the approvability of the petition. 

MU Law has had several H-1B premium processing petitions already approved.  We have also received a few premium processing RFEs.

Data entry of non-premium processing petitions will not be complete until at least May and perhaps June.  Rejection notices for petitions not selected in the lottery will be sent out after the data entry for winning petitions has been completed.  AILA points out that when the cap was reached on the first day in 2008, USCIS did not complete data entry and issue receipt notices until late in May 2008.

SENATE CIR OUTLINE RELEASED

An Outline of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which is the Senate’s "Gang of Eight" bill, has been released.  MU Law has posted a copy of the 17-page Outline on our Doc Stoc page.

It is important to recognize that this is just an Outline.  Several of the Outline's bullet points are inconsistent and outright contradictory with other bullet points.  It is also important to note that the bill is far from becoming law.  The Senate will have hearings to amend the bill throughout April and May. 

If the bill passes the Senate Judiciary Committee and the Senate as a whole, a separate Comprehensive Immigration Reform bill will be announced in the House of Representatives.  The House bill will also have to pass that chamber and then be remedied with the Senate bill.  Only then will it be presented to President Obama for signature.  The key take-away is that this bill is still many steps from becoming law. 

Keeping in mind that the final CIR may look different than this one, this MU Law Visa Advisor only highlights several key items that will be of interest to our clients and friends.  Also, although the 17-page Oultine includes sections on Border Protection and Undocumented Worker Legalization we have not summarized these areas of the law in this MU Law Visa Advisor since they are of lesser interest to our clients and friends.  

Here is the brief MU Law Summary of the Senate's CIR bill:

EMPLOYMENT-BASED GREEN CARDS
-          The Senate CIR bill calls for an immediate elimination of retrogression for currently-pending green card applications.  If this provision is true as listed in the Summary hundreds of thousands of long-delayed EB-2 and EB-3 applications would be immediately eligible for Adjustment of Status, Immigrant Visa appointments, and Green card issuance.  It is unclear how the USCIS and State Department would handle this immense overload of applications.

-          Going forward employment-based green card numbers would dramatically increase.  Theoretically this could mean that future retrogression is small.

EMPLOYMENT VERIFICATION
-          All employers will be required to use E-verify over a five-year phase in period, which will include enhanced photographic measures.

H-1B / L-1 VISAS
-          The H-1B visa cap will increase to 110,000, and can increase to 180,000 over seven years.

-          Spouses of H-1B visa holders will gain work eligibility.

-          H-1B prevailing wage rules may be changing, mandating higher wages for H-1B workers.  It is somewhat unclear in the Outline to what extent the prevailing wage rules will change.

-          Employers with more than 50 employees and who have 50% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $10,000 in H-1B / L-1 filing fees.

-          Employers with more than 50 employees and who have 30% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $5,000 in H-1B / L-1 filing fees.

-          By 2016 any employer who has more than 50% of its workforce on H-1B / L-1 status will be ineligible to petition for H-1B and/or L-1 visas.

-          All employers who wish to hire an H-1B must advertise the position on a government database for 30 days.

MAY 2013 VISA BULLETIN

While the Senate is readying a first draft Comprehensive Immigration bill and rallies around the country are hoping to influence a new immigration system, the old immigration system continues.  The Department of State has just released the May 2013 Visa Bulletin.  This Visa Bulletin shows more of the same: minor progress from last month's Visa Bulletin, with one notable positive exception.

The big news was a five month improvement in All Other EB-3 to December 1, 2007.  The China EB-3 number also moved to December 1, 2007.  All Other, and Philippine EB-2 dates remained Current.  The Chinese EB-2 visa date moved almost forward by six weeks.

On the other hand, the Philippine EB-3 date was disappointing, moving just one week, to September 15, 2006.  Also disappointing was India EB-2, which remained at September 1, 2004 for the seventh month.  

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

May 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15MAY08	01SEP04	Current
EB-3	01DEC07	01DEC07	22DEC02	15SEP06

H-1B CAP LOTTERY ANNOUNCED

The USCIS has reached the statutory H-1B cap of 65,000 for fiscal year 2014 (H-1B Regular Cap). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (H-1B Masters Cap).  This is the first year since FY 2008 that the cap has been reached so quickly.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period. 

H-1B CAP HAS BEEN REACHED

On Friday the USCIS announced that the H-1B cap has been reached.  The USCIS will hold a lottery and return any petitions for Beneficiaries who do not win the lottery.  F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period.

H-1B cap-subject petitions 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

WHEN WILL THE H-1B CAP BE REACHED?

The H-1B cap opened on April 1.  Any H-1B cap-subject petition that is received on or before April 5 is considered a first day filing.  It is unknown at this time whether the H-1B cap will be reached on the first day or not.  In a March 15, 2013 press release the USCIS predicted that,

Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013.

If the USCIS receives more petitions than it is statutorily allowed to approve it will commence an H-1B lottery.  Any H-1B petition that does not “win” the lottery will be returned to the employer.

This begs the question of whether the H-1B cap will in fact be reached by April 5.  MU Law had its busiest week, filing more H-1B cap-subject petitions than it ever has.  This leads us to believe that the H-1B cap will be reached by April 5.

ILW.com’s Roger Algase had an interesting report yesterday.  He says that a FedEx representative told him that their delivery service sent 23,000 to the Vermont Service Center on Monday April 1.  If this report is true then the H-1B cap surely will be reached by April 5.  FedEx is one of three major US courier services.  The Vermont Service Center is one of two receiving facilities for H-1B cap-subject petitions.  April 1 is just one of the five days that H-1B cap-subject petitions will be received.

Traditionally the USCIS announces when the H-1B cap is reached within 72 hours of the 65,000^th H-1B cap-subject petition filing.  Based on all of the data, MU Law’s expectation is that the USCIS will make an announcement sometime next week that the H-1B cap was indeed reached on April 5.