NEW USCIS MEMO: PORTING YOUR I-485 UNDER AC21

On March 18, 2016 the USCIS issued new guidance regarding when a foreign national can port his/her I-485.  Under the American Competitiveness in the Twenty-First Century Act (AC21) a foreign national can change his/her employer or job during the green card process once the I-485 has been pending for 180 day or more.

When changing positions, the green card applicant and their new employer, must file a letter with the USCIS confirming the new employer is taking over the green card case, agrees to pay the prevailing wage, and that the new position is the same or similar to the position described in the green card application.

The USCIS will consider the totality of the circumstances when determining if the green card job and the new job are the same or similar.  Specifically, the March 18 memo describes how Immigration Officers can review the occupation codes assigned to both jobs by the Department of Labor when determining if the two jobs are the same or similar.

Evidence that the positions are the same or similar can include:

• The job duties of both positions;
• The skills, expertise, education, training, licenses or certifications specifically required to perform each job;
• The wages offered for each job; and
• Any other material and credible evidence relevant to the determination.

Green card applicants can also port their I-485s when, in their new position, they are primarily responsible for managing the same or similar function of their original job.  For example, if a PT is promoted to Senior PT and supervises other PTs and PTAs.  It is also acceptable for the applicant to manage workers in a different occupation if the change in position is a normal career progression.  For instance, if an OT is promoted to Rehab Manager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs, and others.

LAST CHANCE FOR 2016 H-1Bs

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Thursday April 7, 2015.  Below are some key points to keep in mind about this year’s H-1B cap:

-The USCIS makes no accommodation for delays caused by couriers.  Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 1, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) may not start until May 11, 2016, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.  
-Last year it was until June before most H-1B lottery winners and losers found out about the outcome of their lottery selection. 

HISTORICAL H-1B USAGE AND AN EDUCATED GUESS ON HOW MANY WILL BE FILED THIS YEAR

This year’s H-1B filing date of April 1, 2016 is coming fast.  MU Law predicts that H-1B petitioners certainly will file in excess of 200,000 petitions during the H-1B cap window of April 1-7, 2016.   Last year’s record filing total of 233,000 will likely be exceeded.  This estimate is based on conversation with clients, other employment-based immigration attorneys, and economic trends, such as the tiny unemployment rate in IT.

When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over three times as many H-1B petitions as slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists,Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B 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

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016 (expected)

OPT STEM EXTENSIONS NOW 24 MONTHS

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months.

STEM OPT Extensions are available to students completing a degree in the science, technology, engineering, or mathematics fields at US colleges or universities in F-1 status.  A list of degrees eligible for STEM Extensions is available on the Immigration Customs and Enforcement website.

In August 2015, the US District Court judge ruled that the USCIS STEM OPT Extension program was invalid because the USCIS had not followed the proper procedure when creating the STEM Extension program in 2008.  The federal judge allowed the USCIS time to re-create the program using the proper procedure. 

The USCIS has now re-created the STEM Extension program using the proper procedure and has extended the length of the STEM Extension from 17 months to 24 months.  The new STEM Extension rules also include the following:

·         Employers participating in the STEM Extension program must incorporate a formal training program that includes concrete learning objectives with proper oversight.

·         All STEM employers taking part in the program must also participate in e-verify.

·         Students must work at least 20 hours per week per employer to qualify for STEM Extensions.

·         Students are now permitted a total of 150 days aggregate unemployment while on OPT.  Students continue to be permitted 90 days aggregate of unemployment during the initial period of OPT.  Students are now permitted an additional 60 days of unemployment during the STEM OPT Extension period. 

The Immigration Service has also created a STEM OPT Hub website which includes resources for schools, students, and employers to assist in the transition from the old STEM OPT program to the new STEM OPT program.  

APRIL 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

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

April 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	01SEP12	08NOV08	C	C
3rd	15FEB16	15AUG13	08AUG04	15FEB16	01MAY08

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 remains positive, gaining 6 more weeks this month.  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 progressed by one month. EB-3 has progressed by about two years in just the last few months.  This is great news for this category.  EB-2 continues to lag behind EB-3.  The DOS expects the EB-2 and EB-3 to re-balance at some point in the future.

India: EB-2 moved ahead about 3 weeks to November 2008. Six months ago it was 01MAY05. This represents a three-and one half year movement in just six months.  This trend may continue. EB-3 moved three 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 almost two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by this spring or early summer.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the 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	01JUN13	01JUL09	C	C
3rd	C	01MAY15	01JUL05	C	01JAN10

MU Law Analysis

These dates did not change from the prior Visa Bulletin. 

IS DONALD TRUMP FOR OR AGAINST THE H-1B ?

This was first posted on the AAIHR blog.

The H-1B is the main US professional visa.   H-1B visa demand follows the US unemployment rate.  When the US unemployment rate is high and many US workers are out of work, H-1B demand is low.  When the US unemployment is low and many US workers are employed, H-1B demand is high.

Last year 232,000 H-1B petitions were field on the first and only day of the H-1B cap window.   This resulted in an H-1B lottery, whereby USCIS rejected 64% of otherwise approvable H-1B petitions.  On the other hand, at the height of the US recession in 2010 it took about 300 days for the H-1B cap to reach the statutory limit of 85,000. 

The tech industry is the largest user of H-1B visas.  Stories of H-1B abuse plague the industry.  Notably Disney has been sued by American workers who claim to have been forced to train the H-1B replacements. 

The healthcare industry uses H-1B visas too, although at much smaller rates that tech in spite of the fact that the shortages of US labor in these occupations are greater than in IT.  Physical Therapists and Occupation Therapists qualify for the H-1B.  The US Department of Labor has repeatedly found that the importation of these Registered Nurses and Physical Therapists does not negatively impact the working conditions or salaries of US workers. 

With each Republican Presidential caucus or primary, Donald Trump is inching closer to the Republican nomination.  His positon on the H-1B visa appears to be fluid.  For months he has generally disfavored any increase in visa quotas.  In particular he has aimed his glare at the alleged abuses in the IT industry. 

It was newsworthy then at the Thursday March 3 debate when Trump announced, “I’m changing,” in response to a question about his H-1B position.  After being pressed by moderator Megyn Kelly, Trump fleshed out his new position, “I'm softening the position because we have to have talented people in this country."  This statement appeared to indicate the Trump would be in favoring of allowing foreign-born US college graduates a path to work authorization. 

The “softening” of his stance is not without controversy.  In response, it appears that Trump may now have dialed back his “softening” and is now staking a middle position.  Shortly after the debate, he reiterated his promise to end “abuse” in the H-1B system. 

Perhaps Trump is playing politics.  One view is that Trump may think that he has the Republican nomination in hand and is therefore tacking toward the center.  This is a strategy that Republicans have used for a generation, ever since it was famously executed by then-candidate Richard Nixon.

A move to the center may mean that Trump would be willing to work with a healthcare industry that has giant supply shortages on the horizon and little hope to curing the shortages with US labor.

MU LAW COMMENT TO USCIS: ALLOW H-1Bs WHEN APPLICANT HAS HEALTHCARE WORKER CERTIFICATE

The USCIS and Department of Homeland Security recently issued a lengthy proposed rule. As per US law, USCIS and DHS had to ask the public for our comments about their proposed rule.  Many lawyers and the public commented on the proposed rule.

The proposed rule covers many areas.  Musillo Unkenholt's comments focused on one area: asking DHS to allow one-year H-1B approvals in instances where the alien does not hold a license, but does hold a Healthcare Worker Certificate.

The most common Healthcare Worker Certificates are Visa Screen, FCCPT Type 1 Certificates and NBCOT Certificates.

Click here to read our complete comment

The Musillo Unkenholt comment is also on Regulations.gov.