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.

SUPREME COURT REFUSES TO RE-HEAR CASE ON OBAMA’S IMMIGRATION EXECUTIVE ACTIONS

On Monday, October 3, 2016, the US Supreme Court refused to reconsider the case regarding the expansion of DACA and creation of DAPA.  DACA, created in 2012 will remain in place. 

President Obama sought to expand the qualifying criteria for DACA and create a program for the undocumented, immigrant parents of US Citizens.  President Obama created DACA and sought to expand DACA and create DAPA by Executive Order, not an act of Congress.  A group of states sued the US federal government, arguing the President did not have the power to expand DACA or create DAPA.  In 2015, a Federal Judge agreed with the states and held the program to be invalid. 

In January 2016 the Supreme Court agreed to hear the case and seemed poised to issue a landmark decision on immigration.  However, the Supreme Court deadlocked in a 4-4 decision which left in place the lower court’s, Federal Judge’s decision.  President Obama then asked that the Supreme Court re-hear the case.  

The Supreme Court rarely reconsiders a case, but sometimes agrees to do so when the court is split 4-4 because one of the 9 justices is vacant due to illness, retirement, or death.  Even if the Supreme Court had agreed to re-hear the case, the decision would not take effect until 2017 or later, after President Obama has left office.  This decision (or indecision) by the Supreme Court draws more attention to the question of immigration and presidential power in the upcoming election.  

LAWSUIT AGAINST H-1B LOTTERY SURVIVES KEY LEGAL HURDLE

Earlier this year, on June 2, 2016, a lawsuit against the USCIS was filed in federal court alleging the H-1B cap is unlawful because federal law requires H-1B applications be processed on a first come/first serve basis. 

The lawsuit was filed as a class action, a legal procedure which allows multiple individuals with the same grievance(s) to join together and file one lawsuit.  The case was filed by two employers and two H-1B workers whose cases were not selected in the H-1B cap.

The USCIS filed a motion to have the lawsuit thrown out of court, stating the H-1B workers cannot sue because they are not in the US and that the H-1B employers have not been injured by the H-1B lottery system.  On September 23, 2016, the federal judge in the case rejected these arguments and indicated the case will move forward.

If the lottery system is ended, the lawsuit argues that the USCIS should give priority dates to H-1Bs and process the cases in the order received, similar to how green cards are issued.  Alternative approaches which have been suggested by various stakeholders include:

•           Raising the H-1B cap to a higher number
•           Basing the number of H-1Bs on the demand in the US economy
•           Creating H-1B cap exemption for those in STEM fields
•           Creating H-1B cap exemption for Schedule A occupations (currently RNs and PTS)
•           Creating H-1B cap exemption for those with a US master’s degree or greater