HIGH-SKILLED WORKER REGULATION SUMMARY

The USCIS recently finalized a new regulation to benefit high-skilled workers which will go into effect on January 17, 2017 – just three days before President-Elect Trump is inaugurated.  The regulation was purposely timed to precede the new Trump administration.  Opinions are mixed on whether the new regulation will stay in effect, or will be immediately revoked or rewritten when President Trump takes office.

Some important highlights of the regulation are:

·         New 60 Day Grace Period.  H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day grace period in the event that the principal visa status holder loses his/her job.  The grace period will allow these nonimmigrant visa holders to remain in the US and find a new job.  The 60-day grace period may be provided to an individual only once per authorized validity period.  An individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications. 

·         Flexibility for H-1B licensed occupations.  The USCIS will approve H-1B petitions for a validity period of up to one year where the applicant can prove that the H-1B employee does not have a US professional license due to the State’s requirement of a social security number, US employment authorization, or a similar technical requirement.  This has been USCIS policy, but is now officially law.   Unfortutnly, the USCIS still has much discretion in this area to interpret local state licensure law.

·         EAD extensions. An EAD will automatically be extended for 180 days, as long as an EAD extension was filed before the expiration of the current EAD.  This will provide needed certainty of continued work authorization.

·         Cap-Exempt Employers. The new rule reworks the H-1B cap-exempt employers rule for employers who are affiliated with an institute of higher education in two ways. 

o   DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.”  This is a less-restrictive standard than the current “primary purpose” rule.  Going forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly contribute to the research or education mission of the institution of higher education.

o   A non-profit that has a formal written agreement that establishes an “active working relationship” with a University, no longer has to have shared ownership and control. This is also a lesser standard than at present.

·         Retention of I-140 in almost all situations.  This new rule clarifies existing USCIS policy that allows Beneficiaries to generally retain their I-140s even if the prior employer revokes the I-140.  This will allow these Beneficiaries to (i) recapture the I-140 priority date in future green card applications and (ii) take advantage of spousal work authorization rules without fear of an underlying I-140 revocation.

JANUARY 2017 VISA BULLETIN: NEWS AND ANALYSIS

The Department of State has just issued the January 2017 Visa Bulletin.  This is the fourth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

January 2017 Visa Bulletin

Final Action Dates

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

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15OCT12	15APR08	C	C
3rd	01AUG16	08SEP13	15MAR05	01AUG16	22JUL11

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases an August 2016 date is effectively Current.

China:   The China EB-2 date moved up about one month. The China EB-3 date progressed three months.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India had another impressive progression from last month, moving forward two months.  EB-3 stayed the same unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another seven weeks.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just four months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

NEXT DHS SECRETARY: McCAUL OR KOBACH ?

President-elect Trump has spent much of the last few weeks vetting potential cabinet members.  Many of the higher profile positons have been named, such as Attorney General (Alabama Republican Senator Jeff Sessions) , Secretary of Defense (Ret. Gen. James Mattis), and UN Ambassador (South Carolina Republican Governor Nikki Haley).  It is expected that he will name a Secretary of State shortly.

The President-elect has not yet tipped his hand on who will be the Secretary of the Department of Homeland Security.  The DHS secretary positon is important because this positon sets DHS policy interpretations for H-1Bs and other employment-based nonimmigrant visas and employment-based green cards.

Two candidates seem to be leading the race to be Secretary of the Department of Homeland Security: Kansas Secretary of State Kris Kobach and Texas Rep. Mike McCaul.  The betting markets have Kobach slightly ahead.  While the betting markets are good indicators, they are not guarantees of future outcomes. 

Rep. McCaul probably would be the better choice for employment-based immigrants and employers.  In the mid-2000s, Rep. McCaul co-sponsored and supported several bills aimed at increasing the H-1B cap and increase employment-based green cards.  On the other hand, many immigration hardliners favor Kobach. 

US RN SHORTAGE TO WORSEN IN THE COMING YEARS

American Public Media’s radio program Marketplace recently broadcast a story regarding the nursing shortage in the US, which is predicted to worsen over the next ten years.  The shortage is expected for the following reasons:

1. More than one third of RNs in the United States are over the age of 50 and will begin retiring or working less hours in the coming years. 
2. As these RNs retire, there are not enough new RNs to fill the open positions. 
3.  The cost of training new RNs is going up.  Many RNs graduate with over $70,000 of debt, which has dissuaded some students from pursuing a career as an RN.  This has also led some US lawmakers to consider government grants for nursing students.  
4.  By 2025 nearly 70 million Americans will be over the age of 65 and many will have chronic illnesses which will likely create more demand for RNs in the United States.
5.  Many more Americans have access to healthcare under the Affordable Care Act (also called Obamacare); this too will cause more demand for medical treatment and the need for RNs.

The US Department of Labor, Bureau of Labor Statistics projects employment of RNs will grow 16% from 2014 to 2024, much faster than the average for other occupations.  Job opportunities for RNs are expected to be good.

MU’s CHRIS MUSILLO TO SPEAK IN CHICAGO, SAN FRANCISCO BAY AREA

MU’s Chris Musillo is a featured speaker at the Visa Solutions Seminars in Chicago and in the Bay Area.  Chris is speaking with Dave Brown of Brown Immigration in Omaha, Nebraska.  Chris and Dave bring over 30 years of combined business immigration experience. 

Register here.

The Chicago seminar is Tuesday November 29, 2016 8AM – 10AM at the Chicago Marriott Southwest. 

The Bay Area seminars are:

• Sunnyvale, CA - Wednesday, December 7th, 2016 (8AM – 10AM), Plug and Play Tech Center, 440 N. Wolfe Road.

• Oakland, CA - Wednesday, December 7th, 2016 (3PM – 4:30PM), Rosenblum Cellars, 10 Clay Street, Oakland, CA 94607, Complimentary wine tasting included after the event.

• San Francisco, CA - Thursday, December 8th, 2016 (8AM – 10 AM), Hyatt Regency, 5 Embarcadero Center.

Registration is free if made in advance of the seminar.  The seminar will run for 90 minutes. The morning seminars include a complimentary breakfast and coffee. 

This program is valid for 1.5 PDCs for the SHRM-CPSM or SHRM-SCPSM andy has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval.

Seminar Topics

• Navigating the 10 Most Important Immigration Issues Facing HR Today
• How do I structure the PERM filing to avoid audit triggers?
• How do I avoid hurting retention/morale while filing H-1s or PERMs?
• Considering the scarcity of H-1B visas, what other options exist for recruiting foreign talent?
• When is Premium Processing truly necessary and/or paid for by the company? When should a company allow an employee to pay it personally?
• How and when should employers initiate the green card process?
• When does the H-1B wage obligation start? When does it end? How does an employer effect a bona fide H-1B termination?
• How do I create the perfect Public Access File and deal with a Department of Labor audit of a company’s H-1B files? What does the DOL look for?
• Given last year’s Simeio Solutions decision – when/why must I file an amendment H-1B when someone moves location? And how do I avoid this problem?
• How do I manage Customs and Border Protection issues and their penchant for incorrectly issuing Form I-94s at the port of entry?
• How should I prepare for changing immigration policy under Donald Trump?

DECEMBER 2016 VISA BULLETIN: ANALYSIS

The Department of State has just issued the December 2016 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

December 2016 Visa Bulletin

Final Action Dates

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

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22SEP12	01FEB08	C	C
3rd	01JUL16	01JUL13	15MAR05	01JUL16	01JUN11

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases a July 2016 date is effectively Current.

China:   The China EB-2 date moved up two months. The China EB-3 date progressed three months.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India had another impressive progression from last month, moving forward three months.  EB-3 moved ahead by one week.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another two months.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just three months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in FY2017.

HOW THE US ELECTION WILL (OR WON'T?) CHANGE IMMIGRATION

On Tuesday US voters will go to the polls to elect 435 House of Reprehensive members, 34 Senators, and of course, a new US President and Vice President.  The biennial election will set the stage for the next two years of federal legislation.  Pundits are calling it the most important election of our lifetime and are predicting massive changes in immigration law.

If Hilary Clinton is elected, she promises to make immigration a top priority.  She is calling for Comprehensive Immigration Reform including a pathway to legalization for millions of undocumented and illegal foreign nationals.  She expects to have legislation proposed within her first 100 days.

If Donald Trump is elected, he is calling for  a wall along the US-Mexican border and greatly increased regulation in all corners of immigration.  His changes to the law will begin immediately. 

It seems unlikely to MU Law that any of this happen immediately.  It also seems unlikely that any immigration changes will be incremental, not dramatic. 

Immigration laws are implemented in two basic ways: legislatively and administratively.  Legislative laws must pass both branches of Congress, the House and the Senate.  The betting markets have concluded that the most likely outcome for this week’s election is that Hillary Clinton will win the presidency, the Democratic Party will have a tiny majority in the Senate, and the House will remain in significant Republican control.  Betting markets have proven to be a more reliable predictor of electoral outcomes than polls or pundits. 

That outcome is a recipe for gridlock.  Even if Hillary Clinton wants to push for a massive legalization program, she will need to convince at least 50% of the House membership to go along with the plan.  It is unlikely that a Republican- controlled House will want any part of a Clinton-inspired immigration bill.  They will be much more likely to spend their time on more email investigations and Benghazi hearings.

A President-elect Clinton may be able to make some progress on administrative changes, which is also known as Executive Action.  Administrative changes are interpretations of law by the Department of Homeland Security.  The President ultimately sets all policy for administrative agencies such as DHS. 

President Obama had some success in this area, such as sanctioning the DACA rules, which allowed undocumented foreign nationals to obtain work authorization if they entered the US as children, provided that they had no other criminal record.  

Through the USCIS, President Obama announced some additional Executive Action in November 2014.  He has had mixed success in this area.  He was rebuked by the courts for overstepping his administrative authority when he sought to create DAPA, a program that would have extended DACA-like rights to undocumented parents of US citizens and permanent residents.  On the other hand, the USCIS has expanded work authorization for certain spouses of H-1B visa holders. 

Which leads to our prediction: Hillary Clinton will win the US Presidency but will not have success passing meaningful immigration legislation.  She may be able to make marginal changes to immigration policy through administrative decision-making, which will likely be less-dramatic and newsworthy.

PTs SHOULD NOT LET FCCPT TYPE 1 CERTIFICATE EXPIRE

In a recent decision, USCIS demanded FCCPT issue Type 1 Certificates ONLY to graduates of university programs whose diploma reads “Master’s Degree” and who have at least 202.1 credit hours.  Any graduate of a program that is equivalent to a US Master’s Degree will no longer be eligible to enter the US and practice Physical Therapy.  In 2017, applicants will need a DPT to obtain a Type 1 Certificate.

Type 1 Certificate renewals will not be subject to this new ruling.  Renewal applications do not examine education, but only licensure and verification of English proficiency.  PTs with a current Type 1 can renew the Type 1 Certificate without being subject to the new standard.  However, if the Type 1 expires, the PT will have to make a new application and will be subject to the new standard.

Type 1 Certificates are valid for five years from the date of issue.  MU strongly advises PTs to timely renew their Type 1 Certification so that they can continue to maintain their immigration status and their ability to work in the US.

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DEC 23, 2016

Earlier this year in May the USCIS published a proposed rule to increase fees.  On October 24, 2016, the final rule was published adjusting the fees for most immigration applications and petitions.  The new fees will go into effect on December 23, 2016. 

The new fees are:

Form	Current Fee	New Fee	Change
I-129	$325	$460	$135
I-130	$420	$535	$115
I-140	$580	$700	$120
I-485	$1,070	$1,225	$155
I-539	$290	$370	$80
I-765	$385	$410	$25

A full list of all of the new fees can be found on the USCIS website.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The fee increase is the first in the last six years and.  The fees will go up an average of 21 percent and will recover the costs associated with fraud detection and prevention and national security.

DOES A RELEASE AND SETTLEMENT PREVENT AN H-1B WORKER FROM BACK WAGES ?

When an H-1B employee separates employment from an H-1B employer, the H-1B employer often seeks a Settlement and Release.  The employer’s goal is to put the matter to rest.  It does not want the H1-B employer to file a private lawsuit seeking back wages or to file a Complaint with the Department of Labor. 

H-1B employers also often are seeking to collect on liquidated damage provisions, which allow the employer to recoup the costs associated with the separation of the employment relationship.  Costs such as reputational loss, replacement costs, and travel costs are usually recoverable under the H-1B rules

H-1B employer and employees often seek a “global settlement,” which settles all outstanding claims between the parties. 

A 2015 Department of Labor decision, Gupta v. Headstrong, 2014-LCA-00008, confirms the appropriateness and enforceability of these settlement agreements.  In Gupta, the Administrative Law Judge held that the Settlement and Release extinguish all of the h-1B employee’s claims to back wages.  Notably in Gupta, the two parties were the employer and the employee.  The DOL was not a party to that lawsuit.

It remains an open question whether an H-1B employer can legally prevent an employee from filing a Complaint with DOL following a proper Settlement and Release.  The DOL does not want to see any hindrance on an employee’s ability to file a Complaint to their agency. 

In Gupta the Department attempted to have the ALJ validate their reading of the law buy filing an amicus brief.   The ALJ did not address this issue in the Decision. The Department would not, of course, have bothered to raise the issue in the amicus brief if it were a settled issue of law. 

Nevertheless, an H-1B employee who fairly settles a back wage claim and who subsequently or concurrently files a complaint with the DOL solely on a back wage claim (and who continues to assert to the Department that the back wage claim remains unsettled following a settlement on those same claims) may be committing fraud before a government agency.  

CHECKING IN ON THE VISA BULLETIN

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.  This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog.  Here are some highlights:

Philippine EB3 – Charlie again offered his most optimistic predictions for this category.  He expects that this category will move several months at a time because demand from those with priority dates from 2011-12 is lower than originally thought.  This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.  

India EB2 and EB3 – Charlie expects that EB2 will move into November 2008 by  March of 2017.  While he did not comment on EB3 at this time, last month he said that the EB3 category will move only one week per Bulletin.

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future.  It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.

China EB-2 and EB-3 - These categories will continue to see-saw.  The DOS is now seeing the EB-3 category demand pick up because of EB-3 "downgrades" from EB-2.

NOVEMBER 2016 VISA BULLETIN

The Department of State has just issued the November 2016 Visa Bulletin.  This is the second Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

November 2016 Visa Bulletin

Final Action Dates

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

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	12JUL12	01NOV07	C	C
3rd	01JUL16	22APR13	08MAR05	01JUL16	01APR11

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  For Consular processing cases a July 2016 date is effectively Current.

China:   The China EB-2 date moved up one month. The China EB-3 date progressed three months.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India had another impressive progression from last month, moving forward over ten months.  EB-3 actually retrogressed one week.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another three months.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas in just two months and is now a trid of the way through 2011.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

We expect more of the same fast progression in FY2017 for Philippine EB-3.  We expect that the Philippine EB-3 number will progress at least three years in FY2017.