SIXTEEN HOUSE REPS ASK DHS AND DOS FOR ANSWERS ON VISAGATE

Earlier this week, sixteen Congressional House representatives sent a letter to Sec. Jeh Johnson (DHS) and Sec. John Kerry (DOS) for answers related to September’s bumbled visa bulletin roll-out that resulted in a last minute revised Visa Bulletin, just days before the October 1 live date. 

This blog produced several articles on the series of events, which has been dubbed “Visa Gate” on Twitter.

Sept. 9 - NEW VISA BULLETIN ALLOWS EARLY FILING OF I-485s

Sept. 16 - MORE NEWS AND ANALYSIS ON THE NEW VISA BULLETIN

Sept 26 - REVISED VISA BULLETIN REVEALS TONE DEAF USCIS

Oct 10 - IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The House Member’s letter asks for the estimated number of applicants who were impacted by the last minute revised Visa Bulletin. 

Going further, they ask for DHS to consider providing EAD cards and allowing portability to those with approved I-140s.  Both concepts were recently endorsed by AILA.

HEALTHCARE STAFFING EXPECTED TO GROW BY 17% IN 2016

Staffing Industry Analysts US Staffing Industry Forecast predicts that US healthcare staffing will grow by 17% in 2016.  All four healthcare staffing sub-segments: -travel nursing, per diem nursing, locum tenens and allied health, showed double digit growth in 2015.

Reasons for the increase in staffing are many, including tightening US labor supply and Obamacare allowing previously uninsured patients to avail themselves of healthcare services.  More details on the report are accessible on their webpage.

MU Law has seen greatly increased demand for foreign-trained nurses, and Physical and Occupational Therapists in 2015, confirming this study's conclusions.

A PRIMER ON HOW AN EMPLOYER MIGHT WIN AN H-2B CASE FOR CAREGIVERS

The H-2B visa is a visa used for temporary or seasonal workers.  As BALCA explained in a case published earlier this week, In the matter of: Absolute Home Care, the H-2B is not a flexible visa.  The H-2B is not a viable option for healthcare employers seeking to fill long term staffing shortages.  An H-2B can only be used to fill staffing shortages, such as a one-time occurrence, seasonal need, peakload need or intermittent need.

In the matter of: Absolute Home Care the employer, Absolute Home Care, asked the DOL to certify that it had a need for twenty Caregivers for nine months, from October 2015 – June 2016.  In support of its claim, Absolute Home Care, provided the DOL with evidence that it traditionally had more clients in the prior winter (January – March 2014), than in the summer months. 

This argument this did not convince the BALCA judge for at least two reasons.  First, the evidence was that the need was for three winter months, not the nine months requested in the Application.  Second, Absolute Home Care asked for 20 Caregivers without documenting a single client contract substantiating the need for the period between October 2015 – June 2016. 

One bright spot is that the judge’s opinion allows the reader to “reverse engineer” how an H-2B might be approvable.  A successful case could be made if the employer can show past practice evinces a seasonal need, along with specific forward-looking contracts detailing a temporary need for the workers.

USCIS TO PUBLISH ITS OWN VISA BULLETIN

USCIS has just announced that it will publish its own Visa Bulletin Dates for Filing Visa Applications (Chart B).  The USCIS’ Dates for Filing Visa Applications will be used in order to determine if immigrant visa applicants can file Adjustment of Status Applications. 

USCIS expects that this chart will be published approximately one week after the publication of the Department of State’s Visa Bulletin.  The November 2015 is expected to be published shortly.

The Department of State’s Application Final Action Date (Chart A) chart will be used to determine when individuals may file their adjustment of status applications.

IN DEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The Department of State has just issued the November 2015 Visa Bulletin.  The new revised Visa Bulletin had a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3.   We have a detailed analysis of the Visa Bulletin at the end of this blog post.

The Department of State now publishes two Employment-based Visa Bulletin charts each month: (1) Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:

• Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
• Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
• Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
• Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.

November 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01AUG06	C	C
3rd	15AUG15	01JAN12	01APR04	15AUG15	15JUN07

MU Law Analysis

All: No change from Oct 2015 Visa Bulletin
China: Both EB-2 and EB-3 progressed a few months from Oct 2015 Visa Bulletin
India: EB-2 jumped from 01MAY05.  This trend may continue.  EB-3 continued its steady but slow progress.
Mexico: No change from Oct 2015 Visa Bulletin
Philippines: EB-3 jumped ahead six months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months. 

Dates of Filing

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

The Dates of Filing chart did not change from October 2015.  This is not a surprise.  The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin. 

The Plaintiffs lost their bid for a Temporary Restraining Order.  If the Plaintiffs were successful, then the USCIS and DOS would have been forced by the judge to revert back to the original September 2015 Visa Bulletin.

The Dates of Filing chart will not change until one of three things happen.  First, the Plaintiffs could be successful in their lawsuit.  However the lawsuit will take many months.  Witnesses will have to be deposed and documents will have to be shared.  Our sense is that the earliest that the lawsuit could be complete is early 2016.

Second, the Plaintiffs and the USCIS / DOS could settle their lawsuit. Similarly, the USCIS / DOS could respond to public and private pressure to change the Dates of Filing.  Several Congressional Representatives have issued statements to the agencies' expressing their frustration with these agencies' haphazard approach to immigration benefits.  

AILA has been working behind the scenes to lobby the agencies for an accurate Dates of Filing chart.  There is a sense among immigration attorneys, MU Law included, that the agencies do not really have a firm grasp of the volume of immigrant visa numbers.  Our evidence for this claim is the seemingly random dates listed on visa bulletins.  The pressure being exerted on the agencies may force the agencies to truly do their job and accurately project Visa Bulletin dates.

Thirdly, the numbers may compel movement. This third path may be the most realistic.  

This is most likely in the Philippine EB-3 category.  As we have seen with the publication of the November Visa Bulletin, the Philippine EB-3 Final Action date jumped ahead six months to June 2007.  This implies that the DOS does not truly know what the demand is for Philippine EB-3 visas.

But we know what the demand is.  MU Law has a very large volume of healthcare-based immigrant visa clients and we know most of heaviest users of healthcare-based immigrant visas and their attorneys.  These clients and friends claim a large portion of the Philippine EB-3 visas.  

Our read is that most (not all) of the Philippine EB-3 priority date recaptures from 2004-2008 have already happened.  We also know that very few Philippine EB-3 immigrant visas were filed between 2009 and 2012. In other words, once the DOS moves the Philippine EB-3 date to 2009, it will have to quickly move that date to 2013.  
Our prediction is that the immigrant visa volume dictates that the DOS will progress the Philippine EB-3 Dates of Filing number in the first half of 2016 and certainly no later than next summer.

DHS TO CREATE FILIPINO WWII VETERANS PAROLE PROGRAM

This blog generally focuses on employment based immigration, especially those in the healthcare area.  Today's’ blog post is not that.  Today’s blog post is focused on a new USCIS veterans Parole program for Filipino WWII veterans.  Since so many healthcare works are of Filipino descent, we though that this item was worthwhile for our readership.

The new program may enable Filipino family members to provide support and care to their aging veteran family members who are U.S. citizens or lawful permanent residents.

USCIS has merely announced their intention to establish the program.  It is not yet effective.   Any applications received before the program is implemented may be denied. USCIS will inform the public when the application process is in place.  Register to receive email USCIS updates.

SUNSET OF 50/50 H-1B FILING FEES

In 2010, Congress passed Public Law 111-230.  PL 111-230 raised H-1B and L-1 filing fees for employers who have over 50 employees with more than 50% of these employees in H-1B or L-1 status.  H-1B petitions were assessed an additional $2,000 in filing fees.  L-1 petitioners were assed $2,250 in additional filing fees.  These additional fees did not stay with USCIS but were deposited into the US government’s general treasury fund, ostensibly to fund border security.  PL 111-230 was original to end in 2014, but was re-authorized until September 30, 2015.

At this time, PL 111-230 has not been reauthorized and so 50/50 employers no longer need to pay the additional filing fees.  AILA has confirmed that USCIS is aware of the ending of PL 111-230.