DINNER AT AILA ANNUAL

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Most years we have about 15 people.  It is a great chance to catch up with old friends (and new ones!). It is a casual event.

If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group.  The deadline to register is June 1. Friends, spouses, etc. are also welcome.

USCIS FINISHES H-1B LOTTERY

The H-1B lottery has been completed.  USCIS has finished the data entry for all FY 2019 H-1B cap-subject petitions.  Musillo Unkenholt continues to see H-1B checks being cashed and continues to receive H-1B receipt notices in our mail.  Therefore H-1B cap-subject petitioners should not lose hope yet if they have not received an H-1B receipt notice.  We expected that we will continue to see H-1B receipts for the next two weeks.

After the final H-1B receipt notices are sent by USCIS, they will begin returning all H-1B cap-subject petitions that were not selected.  In past years it has taken USCIS 1-2 months to complete this process.  Musillo Unkenholt does not expect the final H-1B returns until late June or early July.

TWO MAJOR CHANGES FOR F-1 STUDENTS

USCIS has recently issued two updates that impact F-1 students. 

Unlawful Presence

On May 11, 2018, the USCIS issued a policy memorandum that changed the rules regarding unlawful presence for F-1 students.  Unlawful presence begins to accrue once a foreign national has stayed beyond the end date on his/her I-94 card.  Because F-1 I-94 cards do not have an end date, but show D/S (duration of status) as the term of stay, unlawful presence did not apply to F-1s. 

As of August 8, 2018, individuals in F, J, and M status who fail to maintain their status will start accruing unlawful presence on or after the date of one of the following events:

• The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while adjudicating the benefit request;
• The day after the student’s I-94 expires; 
• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), orders the student excluded, deported, or removed; 
• The day after the student no longer pursues a course of study or authorized activity, or the day after the student engages in unauthorized activity (e.g. unauthorized employment); or
• The day after the student completes his/her course of study or program, including any authorized CPT or OPT plus any authorized grace period.

Individuals who have accrued more than 180 days of unlawful presence are generally subject to a 3 year bar of re-entry to the US.  Individuals who accrue more than 365 days of unlawful presence are generally subject to a 10 year bar of re-entry to the US.

STEM OPT   

In April 2018, USCIS updated its website regarding STEM OPT extensions to indicate students are not permitted to engage in STEM OPT at third party worksite locations.  No formal policy memo or update was announced regarding this change. 

The 2016 STEM OPT Rule requires only that the student be a bona fide employee of the employer signing the I-983 training plan.  The I-983 does require that the student “receive on-site supervision and training” but does not specify if the employer must provide this supervision. 

This issue has been raised with DHS and members of Congress through industry groups and the American Immigration Lawyers Association and is currently under review.

JUNE 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the June 2018 Visa Bulletin.  This is the ninth Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

June 2018 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	01JAN12	01JAN12	C	C
EB-2	C	01SEP14	26DEC08	C	C
EB-3	C	01JUN15	01MAY08	C	01JAN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	C	C	C
EB-2	C	01FEB15	01APR09	C	C
EB-3	C	01JAN16	01SEP08	C	01JUL17

MU Law Analysis (all references are to Table A unless noted)

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  As with all categories this month, the movements were nonexistent.  It would not surprise MU if the Chinese numbers did not move for the remainder of the fiscal year.  China EB-2 is a better bet to progress than EB-3, although it remains doubtful that EB-2 progresses ahead of EB-3.

India:  There is a similar story with India as with China.  No progress, outside of a minor 4 day movement in EB-3.  We would not be surprised to see minor movements in these categories before the end of the fiscal year.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same, which is not surprising considering the enormous progressions of the last few years. The Phils EB-3 number will probably continue to only move negligible, reflecting the large numbers of Philippine RN EB-3 petitions that were filed in 2016-2018.  There is a chance of a small progression in the next few VBs.

H-1B EMPLOYERS SUE USCIS TO STOP HARASSING EMPLOYER-EMPLOYEE RFEs

On May 1 a significant lawsuit was filed in federal court in New Jersey.  The Plaintiffs, three IT consulting companies, seek to overturn some of the most harassing parts of the USCIS’ policy against H-1Bs.

The legal issue is simple: USCIS is only allowed to enforce laws that are passed by Congress.  USCIS is not allowed to create laws.  The lawsuit alleges that the USCIS’ policy of seeking third-party contracts, vendor letters, itineraries, and endless details over employer-employee relationships are all outside USCIS’ authority.

Jon Wasden is the attorney who filed the case.  Jon worked at USCIS's Administrative Appeals Office and the Justice Department and has substantial experience in these issues. 

If your H-1B has been denied for these reasons, please let me know and I can put you in touch with Jon or you can visit his website.