VISA BULLETIN PROJECTIONS FOR 2015

AILA holds a regular meeting with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

India EB-2.  Mr. Oppenheim suggests that India EB-2 may slightly progress in the first-half of 2015.  Historically the Visa Office has waited until the summer to advance the India EB-2 date.

China EB-3.  China EB-3 is expected to continue to advance since demand has not yet been exceptional.   However, as more and more China EB-2 applicants “downgrade” their Application to EB-2, advancement will slow.

President Obama’s Recent Executive Action.  The Visa Office reminds users that the President’s Executive Action is not expected to have any impact on the Visa Bulletin.  While the Executive Action suggests that Adjustment of Status applications will be able to be filed much earlier in the green card process, these “pre-filings” will not impact the priority dates.

JANUARY 2015 VISA BULLETIN

The Department of State has just released the January 2015 Visa Bulletin.  This is the fourth Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at June 2013, which is a progression of six more months.  It remains consistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.

India EB-2 remained stuck at February 2005.  The India EB-2 date retrogressed by four years recently and it does not appear  that any meaningful progression is imminent.  India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB10	15FEB05	C	C
3rd	01JUN13	01MAR11	15DEC03	01JUN13	01JUN13

US WORKERS SUE TO ELIMINATE OPT

The Washington Alliance of Technology Workers (WashTech), a collective bargaining organization that represents science, technology, engineering, and mathematics (STEM) workers, has sued the U.S. Department of Homeland Security seeking to eliminate the Optional Practical Training (OPT) program.  The OPT program allows foreign nationals on an F-1 student visa to engage in twelve months of employment during and following a full-time course load in a U.S. educational institution.  Certain STEM applicants can extend their OPT status an additional 17 months, pursuant to an April 2008 instituted by President George W. Bush’s administration.  The OPT is often seen as a bridge to the H-1B program.

WashTech argues that the OPT program causes actual harm to US technology workers because US employers hire these OPT workers when the employers could be hiring these US workers.  The WashTech plaintiffs have standing to make their case.  The court’s finding that standing exists means that the case can go forward, although the court’s decision does not speak to the likelihood of success when the substantive case is argued.

HOW AMERICA ENACTS LAWS

Funny stuff from Saturday Night Live, which attempts to explain how the President's Executive Order works.

PRESIDENT OBAMA TAKES EXECUTIVE ACTION

Last night President Obama announced the Immigration Accountability Executive Actions (IAEA), which is a series of wide-ranging changes to immigration policy.  Most of the major changes are centered on the undocumented community.  However, some changes will impact the business community.  At this point, only summary policies have been released by the administration.  Over the next few days and weeks, more details will emerge.  None of the changes are expected to take effect until after the New Year

MU Law will be holding a client teleconference on Tuesday December 2, 2014 at 2PM ET / 11AM PT for all clients and friends of the firm.  If you or anyone in your organization would like to dial-in to the teleconference, please contact Annalisa Smith (Annalisa@muimmigration.com) to register.

Here are the key components of the IAEA, with a focus on the policies that will impact clients and friends of MU Law:

1. Allowing earlier filing of the I-485, Adjustment of Status: Green card applicants will no longer have to wait until their priority date is current in order to file their I-485, Adjustment of Status. This is especially helpful for India and China EB-2 applicants and all EB-3 applicants in the US.

a. By allowing green card applicants to file their I-485, Adjustment of Status much earlier in the green card process than under the current process, applicant’s spouses will be able to obtain work authorization (EAD cards) many years earlier than under the current policy. 

b.  Once an I-485 is pending for 180 days, applicants are able to leave their green card employer-sponsor provided that they have found a “same or similar” position.  The President has also announced that the USCIS will be providing guidance on the definition of “same or similar”.  The forthcoming guidance is expected to be more liberal than the current interpretation.

2.  H-4 Work Authorization.  This long-proposed rule will allow spouses of H-1B workers to obtain work authorization.  Earlier this summer, the USCIS floated a proposal that limited the EAD to H-4 spouses whose H-1B workers have been in the green card process for at least one year.  A final regulation is expected in December or January.

3. PERM.  The Department of Labor is expected to “modernize” the PERM process, including a potential “harmless error” provision.

4. Entrepreneurs.  The administration will be “clarifying” rules regarding using the national interest waiver and parole processes for entrepreneurs.  It is expected that these rules will be liberalized to encourage investment and entrepreneurs.

5. L-1B Guidance.  The L-1B visa system is riddled with inconsistent decision-making.  The USCIS will be offering guidance to help on this issue.

6. OPT.  Optional Practical Training will be expanded.

7. Deferred Action expansion.  This provision is the focus of much of the media attention.  Some undocumented and illegal people in the US will be able to gain temporary three year work authorization and no longer be under the threat of deportation/removal. 

a. Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and

b.  DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. 

CGFNS TO OPERATE THE ALLIANCE FOR ETHICAL RECRUITMENT

The Alliance for Ethical Recruitment was formed in 2009 as a result of a funding grant from the MacArthur Foundation.  There always are perceived recruitment abuses in the international arena.  Some of these perceptions are borne out of very real abusive behavior.  Some of these perceptions are borne out of hysteria and junk statistics. 

The Alliance has tried for several years to root out the former.  It has struggled to gain traction.  Despite the Alliance’s efforts, only four employers have endorsed the Alliance Code of Ethical Recruitment, only one of which has joined since the pilot phase ended in 2010.  The AAIHR (of which MU Law is a member) also has a Code of Ethics, which has been more accepted by the industry. 

The Alliance is now about to shift gears.  CGFNS, who have long been involved in international nurse matters, will be operating the Alliance.  The Alliance will now be managed by Mukul Bakhshi, JD. 

The official launch of this new phase of the Alliance will take place at a reception in January at a location in Washington, D.C.

NVC NO LONGER COLLECTING ORIGINAL CIVIL DOCUMENTS

The Consular Process route to a green card consists of three steps: (1) Filing and approval of the I-140; (2) National Visa Center; and (3) Consular interview.  The middle stage, the NVC stage, consist of collection of fees for the processing of the Beneficiary and his or her family (often called “Fee Bills”) and the collection of a variety of civil documentation, such as birth, marriage, and police certificates.  In a break from the past, the NVC will now only collect photocopies of these civil documents.  The original civil documents should be brought to the Consular Interview in the home country.   Applicants at designated electronic processing posts will continue to submit their documents via email.  This new policy is effective as of November 12, 2014.

When the Consular Interview is scheduled, NVC will instruct applicants to bring their original documents to the interview for evaluation and final case processing.  Beneficiaries should note that Original Affidavit of Support forms will still be submitted to NVC for initial evaluation.  Affidavits of support are typically not used in employment-based immigration cases.  Affidavits of support are usually only used in family-based immigration.

By making this change, NVC hopes that it will maintain the integrity of the immigrant visa process, reduce customer wait times, and improve the customer experience overall.

DECEMBER 2014 VISA BULLETIN

The Department of State has just released the December 2014 Visa Bulletin.  This is the third Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at November 2012, which is more than a five year jump since March 2014.  It remains consistent with the All Other (ROW) EB-3 date and the Mexican EB-3 date.

India EB-2 remained stuck at February 2005.  The India EB-2 date retrogressed by four years recently and it does not appear  that any meaningful progression is imminent.  India EB-3 continued to move ahead at a snail's pace.  It is December 2003.

The Chinese EB-2 and EB-3 number continued to move inconsistently.  China EB-3 remains ahead of China EB-2 which has been the case for much of the last two years.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN10	15FEB05	C	C
3rd	01NOV12	01JUN10	01DEC03	01NOV12	01NOV12

EXECUTIVE ACTION OR ALL TALK AND NO ACTION?

President Obama showed no indication that he would back down from a pledge to take Executive Action on immigration despite the Republican party’s big wins in Tuesday’s elections.  He promised that he would take whatever lawful action he could if the Congress does not pass meaningful immigration legislation during the November-December lame duck period.  

However, he gave no details about whether the Executive Action would be limited to legalization of the undocumented or a broader action that might liberalize employment-based visa classes such as H-1Bs and employment-based green cards.  A list of Executive Action options includes both options.

Meanwhile the Tea Party republicans threatened to take legal action if the President does anything on immigration.  Republicans attempts at filing a law suit against President Obama seems to be riddled with problems.  Politico has reported that two different law firms have started and then declined to work on the Republican’s law suit in the last two months.

The longer that the President dawdles on the Executive Action pledge, the more he feeds the meme that his Presidency is one of all talk and no action.  

FEDERAL COURT CONFIRMS GREATER MISSOURI H-1B DECISION

The Greater Missouri Medical Pro-Care Providers H-1B case has been winding its way through the court system since 2006.  The key facts are that an aggrieved H-1B holder filed a Complaint with the Department of Labor alleging a multitude of H-1B violations.  The Department of Labor’s Administrative Review Board ultimately issued a Decision in January 2014.  The ARB decision is one of the best written and comprehensive legal discussions of an H-1B employer’s salary obligations that a practitioner will ever find. 

One of the key holdings concerns the statute of limitations for an employer’s H-1B violations.  The ARB found that the DOL does not need to limit its investigation to the single complaining H-1B employee.  The DOL may expand its investigation to all H-1B employees; however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  (Page 16, in the above-linked decision). 

The ARB’s decision contained a dissent by Deputy Chief Administrate Appeals Judge E. Cooper Brown.  Judge Brown opined that the DOL’s investigative authority should be limited to the complaining H-1B employee.  If Judge Brown's opinion had held court it would have significantly changed long-standing DOL investigative practice. 

The plaintiff, Greater Missouri, sought federal review of the ARB decision hoping to convince the federal court that Judge Brown’s dissent was the proper reading of law.  Last week, the federal court denied the Greater Missouri petition, probably ending the eight and a half year saga.

PRESIDENT OBAMA COULD EXPAND H-1B AND DOUBLE GREEN CARDS WITHIN THE NEXT TWO MONTHS

This November or December the President may expand the H-1B rules and double the number of employment-based green cards, through Executive Action.  Either would be welcome to an American industry that cannot find US workers in low supply occupations such as healthcare and information technology.  The Executive Action will happen between the November 4, 2014 and January 3, 2015.

Earlier this month the President hinted that he will use Executive Action to liberalize the H-1B program.  One method may be to finally enact rules that extend work authorization to spouses of H-1B workers.

Pundits have also said that the President could effectively double the number of employment-based green cards by changing the way that employment-based green card are counted.  Doubling the number of employment-based green cards would make most employment-based green card categories current, eliminating retrogression.

The Executive Action doctrine allows Presidents to implement changes to the law, as long as those changes are interpretations of established law and not the creation of new law.  There is a fine line between an interpretation and the creation of law.

The President controversially took Executive Action in June 2012 when he issued the Deferred Action for Childhood Arrivals (DACA).  DACA allows certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal.

The President originally planned to use Executive Action this summer in other areas of immigration law.  He has postponed those plans until after Election Day in order to appease Democrats in tough districts. 

It is expected that the House of Representatives will remain firmly in control of the Republicans.  The Senate, which is presently in control of the Democrats, will almost surely flip to Republican control.  This will give the Republicans control of both houses of Congress when the new Congress starts on January 3, 2015.  For this reason, the President is expected to act before the new Congress is sworn into office.

USCIS UNHELPFUL ON EB-2s FOR PHYSICAL THERAPISTS

The October 9, 2014 USCIS Headquarters Question and Answer session with AILA included a lengthy discussion on the issue of EB-2s for Physical Therapists.  The discussion was unhelpful and did nothing to make progress son this issue. 

This issue is that the USCIS refuses to acknowledge that the five year, 150+ credits Philippine degree is equal to a US Master’s Degree in spite of incredible evidence.  The USCIS’ refusal to do so means that Philippine Physical Therapists must file for an EB-3.  We have blogged on this topic in great detail.

This recent USCIS Q&A shows the USCIS’ obtuseness on the issue.  Instead of articulating a common standard, the USCIS says,

Rather than make a blanket statement regarding the merits of degrees evaluated by the FCCPT to be the equivalent of a first professional degree in physical therapy in the United States, USCIS will analyze the educational credentials of foreign workers practicing physical therapy on a case by case basis with due consideration being given to all submitted materials as well as to other credible resource material.

“Case by case basis” is legal code for “we have no standard.”  It simply is not that difficult analysis.

VISA BULLETIN PROJECTIONS FOR THE NEXT FEW MONTHS

AILA has again recently dialoged with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

Here are his projections based on his recent conversation with AILA:

EB-2 India

The November 2014 Visa Bulletin retrogressed India EB-2 to February 2005, which was 4 years worse than the October 2014 Visa Bulletin.  Unfortunately, the India EB-2 date is expected to stay in 2005 for the foreseeable future.

EB-3 India

This category should see continued slow movement of about one or two weeks for every Visa Bulletin.

EB-3 Philippines

The EB-3 Philippine’s date is expected to remain the same as the Worldwide EB-3 date for the next several months.  These dates will remain the same unless the demand for the Philippines EB-3 spikes in future months.

EB-2 China

This category should progress three to five weeks for every monthly Visa Bulletin.

EB-3 China

EB-3 China should see rapid promotion of dates in the forthcoming months.

FCCPT PILOTING EXPEDITED SERVICE

The Foreign Credentialing Commission on Physical Therapy is launching a pilot program, offering expedited completion of reviews.  The Expedited Service program guarantees completion within six weeks.  The reviews have traditionally taken eight weeks.  An Expedited Service can be requested at any time prior to the start of a review and up to two weeks after the start of the review.

NOVEMBER 2014 VISA BULLETIN

The Department of State has just released the November 2014 Visa Bulletin.  This is the second Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at June 2012, which is a five year jump since March 2014.  It remains consistent with the All Other (ROW) EB-3 date.

India EB-2 had a dramatic retrogression, moving from May 2009 all the way back to February 2005.  India EB-3 remains stuck in November 2003.

The Chinese EB-3 number continued to move dramatically and inconsistently.  It is now at January 2010 and is more favorable than China EB-3.

The Visa Bulletin also included this projection:

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second: 

Worldwide: Current
China:        Three to five weeks
India:         No forward movement

Employment Third:

Worldwide: Continued rapid forward movement for the next several months. After such rapid advance of the cut-off date applicant demand for number use, particularly for adjustment of status cases, is expected to increase significantly. Once such demand begins to materialize at a greater rate it will impact this cut-off date situation. 

China:       Rapid forward movement. Such movement is likely to result in increased demand which may require "corrective" action possibly as early as February.

India:        Little if any movement
Mexico:      Will remain at the worldwide date
Philippines: Will remain at the worldwide date. Increased demand may require "corrective" action at some point later in the fiscal year. 

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08DEC09	15FEB05	C	C
3rd	01JUN12	01JAN10	22NOV03	01JUN12	01JUN12

FSBPT ELIMINATING DISTINCTION BETWEEN GENERAL EDUCATION AND PROFESSIONAL EDUCATION

Starting November 1, 2014, the Federation of State Boards of Physical Therapy (FSBPT) will eliminate the distinction between General Education and Professional Education.  This is a modification of the Interpretive Guidelines for the FSBPT Coursework Tool (CWT).

The Coursework Tool accepted by all member boards to evaluate whether a foreign educated PT or PTA’s education is substantially equivalent to a US PT or PTA education.

FSBPT’s Board issued a comprehensive notice letting the public know that the Board “did not approve this change lightly”.  The Board explained that the elimination of the distinction had been considered for several years and had been recommended by the FSBPT’s Foreign Educated Standards Committee.  Notably, within US education and within the criteria developed by the Commission on Accreditation in Physical Therapy Education (CAPTE), there is no such term as general education.  The new policy does not to eliminate the required courses within General Education, but it does eliminate the artificial distinction between Professional Education and General Education.

For foreign-educated PTs, this change could be helpful.  Presently the CWT requires 150 total credits, which is comparable to what is needed for a US post-graduate degree.  In many international PT programs these general courses are embedded into the PT professional courses, not completed ahead of entry. The current model would not allow the evaluator to give credit as a general course since it was taken as part of their professional coursework.

Previously, some foreign-educated PTs education was found to be incomparable to a US-educated because of the distinction between Professional Education and General Education.  This resulted in some foreign-educated PTs having to take “make-up” classes, usually from CLEP.  As the Board correctly points out, “to ask an applicant to complete a prerequisite after completing professional curriculum seems counterintuitive, and sets up an unreasonable barrier to licensure.”  

AILA AUDIO CLE ON NURSES AND ALLIED HEALTH

The AILA Education Department has scheduled an audio seminar for Thursday, October 9, 2014 @ 2:00 pm (Eastern Time) entitled “Petitions for Nurses and Allied Healthcare Workers.”  MU Law’s Chris Musillo is the Moderator of this audio seminar.  Chris’ co-speakers are with Tiffany Baldwin and Carl Shusterman.

The audio seminar will include these topics:

• H-1B for Nurses: 2002 and 2014 USCIS Memorandum
• Using Schedule A for Nurses and Physical Therapists
• EB-2 Consideration for Healthcare Worker
• USCIS Reliance on the EDGE Database in Evaluation of Foreign Education
• The Role of State Licensing and Credentialing in H-1B and PERM Cases
• Drafting Immigrant Visa Applications for Roving Healthcare Workers
• Visa Screen: Who Needs It and Why?

The panel has reserved 30 minutes for Questions and Answers at the conclusion of the presentation.

MASSACHUSETTS PUTS OUT THE WELCOME MAT FOR H-1B WORKERS

The State of Massachusetts has hit upon an ingenious plan to widen the path for H-1B workers and employers, as reported by CNN/Money.  By using the H-1B “concurrent” employer program and coupling it with the H-1B “cap exemption” for Universities, Massachusetts will help foreign entrepreneurs obtain H-1B visas to work in Massachusetts.

The plan appears to work like this: the Massachusetts Technology Collaborative will vet prospective H-1B entrepreneurs.  When an innovative entrepreneur is identified, the Collaborative will find a Massachusetts University to sponsor the H-1B worker under the “cap exemption” rule.  This rule says that an H-1B worker who is sponsored by a University is not subject to the H-1B lottery. 

Because there is no set required number of hours that the H-1B worker must be employed at the University, the expectation is that the H-1B worker will only work 8-10 hours per week at the University. 

Presumably, the H-1B start-up will then sponsor the H-1B worker for a “concurrent” H-1B visa.  The H-1B employee will spend the rest of the work-week employed by the start-up. 

Without the assistance of the University, the plan would not work because the start-up’s H-1B sponsorship would normally be subject to the H-1B lottery.  The plan is an elegant and creative one to deal with an outdated H-1B cap.

There is no reason that Massachusetts has to limit this plan to entrepreneurs.  It could also be used to help fill critically short healthcare occupations.

FSBPT LAUNCHES PLAN FOR INTERSTATE LICENSE COMPACT

The Federation of State Boards of Physical Therapy (FSBPT) is in the nascent stage of developing a Physical Therapy license compact.  FSBPT’s aim is to reduce regulatory burdens by allowing cross-state practice for licensed Physical Therapists.  The nursing profession has had a nursing compact since 2000.  According to FSPBT, 24 states participate in the nursing compact.

FSBPT’s Advisory Task Force has recommended a similar model to the nursing compact. 

The licensee participant must hold one valid, current, unrestricted license his or her primary state of residence, notify any remote states in which s/he will be practicing and pay a fee to the remote state.

The final language is expected to be ready for review in mid-2015.  If a state wishes to participate in the PT license compact, that state will need to pass the final language into law.  This likely requires state legislative action.

FSPBT has a series of articles and FAQs on their webpage.

DELAYS AT THE NVC

The progression of priority dates in the recent few months has been exciting news for many, especially those EB-3 applicants who have been patiently waiting for their green cards for many years. 

Unfortunately the unexpected progression has swamped the National Visa Center.  The NVC is now issuing letters indicating that NVC cases will be delayed for 60 days.  Here is an excerpt from a stock form letter that our office has received in the last few days.  We have received about a dozen of these letters.

We are currently receiving an increased number of approved petitions from U.S. Citizenship and Immigration Services. As a result, we are experiencing increased review times for documents received.

We expect it will be at least 60 days from the date we received your mail before we complete the review of your documents. We will notify you when we review your documents.

We are working to reduce these processing times and we appreciate your patience.

NVC FEE BILL REDUCTION

The Department of State has just reduced the price that it charges for an immigrant visa NVC Fee Bill.  The new fee is $345, which is decrease of $60 from the old rate of $405.  It is a steep reduction from a few years ago when the NVC Fee Bill charge was $720. 

The new, lower fee is effective September 12, 2014.  Fees that will decrease are not refundable.  If you paid a visa fee before September 12, 2014 and that fee decreased, the NVC will not issue a refund.

Many other fees associated with the visa process changed on September 12.  Some nonimmigrant visa fees increased.  For fees that will increase (nonimmigrant fees only), Visa fees paid will be accepted 90 days after the new fees go into effect.

• If you paid your visa fee before September 12, 2014, and your visa interview is on or before December 11, 2014, you do not have to pay the difference between the new and old fee amounts.
• If you paid your visa fee before September 12, 2014, and your visa interview is on or after December 12, 2014, you will be required to pay the difference between the old and new fee amounts.

VISA BULLETIN OCTOBER 2014

The Department of State has just released the October 2014 Visa Bulletin.  This is the first Visa Bulletin of the 2015 US Fiscal Year, which begins October 1, 2014.

The Philippines EB-3 has again had a substantial progression.  It is now at October 2011, which is a four year jump in the last four months.  It remains consistent with the All Other (ROW) EB-3 date.

India EB-2 also remained at May 2009.  India EB-3 unfortunately remains stuck in November 2003.

The Chinese EB-3 number continued to move dramatically and inconsistently.  It is now at April 2009.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15NOV09	01MAY09	C	C
3rd	01OCT11	01APR09	15NOV03	01OCT11	01OCT11