CONGRESS AGAIN RAISES USCIS FILING FEES FOR 50/50 EMPLOYERS

The H-1B and L-1 “50/50” filing fees are back and larger than ever.  Last night, the House Republican leadership posted the full text of the Consolidated Appropriations Bill of 2016.  The Act revives the additional H-1B and L-1  filing fees for “50/50 employers”.  A “50/50 employer is one has more than 50 employees , where more than 50 percent of the employees hold H-1B or L-1 status.  Upon the forthcoming enactment of this new Act, the new combined filing and fraud fees for 50/50 employers will be H-1B: $4,000 and L-1: $4,500.  This fee will apply to all H-1Bs and L-1s, even if it is an extension of status.  

ILW has a nice table of other immigration provisions that are included in the Act, such as H-2, Physicians, E-Verify, R-1, EB-5, and Visa Waivers.  Most of these are routine extensions of existing programs that had recently ended.

In 2010, Congress passed the original “50/50” increased filing fee rule.  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 assessed $2,250 in additional filing fees.  PL 111-230 was originally to end in 2014, but was re-authorized until September 30, 2015.  It did sunset on September 30, 2015.  For the last three months, there has been no increased filing fee for 50/50 employers.

JAN 2016 VISA BULLETIN AND ANALYSIS

The Department of State has just issued the January 2016 Visa Bulletin.  This is the fourth Visa Bulletin of Fiscal Year 2016. 

January 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01FEB08	C	C
3rd	01OCT15	01JUL12	15MAY04	01OCT15	01NOV07

MU Law Analysis

All: These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 did not change. EB-3 has progressed six months Nov 2015 Visa Bulletin, which was 01JAN12.

India: EB-2 jumped again. Three months ago it was 01MAY05. In Nov 2015's Visa Bulletin it was 01AUG06.  In December 2015 it was 01JUN07.  This trend may continue. EB-3 moved two weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead four months. MU Law believes that Philippines EB-3 will steadily move forward in the coming months.

Dates of Filing

Applications with these priority dates may file their I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization. 

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	01JAN16	01OCT13	01JUL05	01JAN16	01JAN10

MU Law Analysis

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

Our analysis is the same as described in our October 10, 2015 blog post.

H-1B AMENDMENTS REQUIRED BY JAN 15, 2016

H-1B employers are reminded of the USCIS’ revised Final Guidance in the Simeio Solutions decision. Although the decision was not to be applied retroactively, H-1B amendments still must be filed in certain instances:

Date of H-1B employee's move	Action
On or before April 9, 2015	No amended H-1B is needed.
April 9 - August 19, 2015	Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015	Must file an amended H-1B once LCA is certified.

Accordingly, MU Law advises that if an employee moved between April 9 – August 19, 2015, an H-1B Amendment MUST be filed before January 15, 2016.

The revised Final Guidance reconfirmed that an amended H-1B petition is NOT required if the geographical move is within an “area of intended employment.”  An “area of intended employment” is generally the same as a Metropolitan Statistical Area.  Likewise, an amended H-1B petition is NOT required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration.

NCLEX NUMBERS LEVELING AFTER YEARS OF DECLINE

The latest NCLEX Statistics show that the decline in internationally-educated nurses taking the NCLEX examination has abated.  Through the third quarter of 2015, 16,685 first time internationally-educated nurses have taken the NCLEX.  That is up slightly  from 2014 when 15,207 first time internationally-educated nurses had taken the NCLEX through the third quarter. 

The pass rates of first time NCLEX internationally-educated nurses are rising slightly too.  In 2014 28.8% of first time internationally-educated nurses passed the exam.  In 2015, that has risen to 31.5%.  All told, about 4,500 first time internationally-educated nurses are annually taking and passing the exam.  Another 2,000-2,500 or so repeat test takers are also annually passing the exam.  Together, almost 7,000 internationally-educated nurses are annually taking and passing the exam.

These numbers are considerably lower than the peak years of last decade.  In 2006, 20,907 internationally educated RNs passed the NCLEX exam. In 2007, the volume jumped; 22,827 internationally educated nurses passed the NCLEX exam. With the onset of retrogression, 2008 saw a slight decline; 18,905 internationally educated RNs passed the exam.