SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019.  In anticipation of that deadline, here are seven things to remember about the H-1B cap.

 

1. These types of cases are subject to the H-1B cap: 

·    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; and

·     Prospective international employees currently living abroad.

 

2. These types of cases that are not subject to H-1B cap: 

·     H-1B amendments/extensions/transfers

·     When the employee has been in H-1B status for less than 6 years

·    Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada,  Mexico

·     MDs who have received a J-waiver of their 2 years foreign residency requirement.

·     H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

 

3.  Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs an H-B cap lottery, including all cases.  This is for the 65,000 H-1B regular cap slots.  Then, the USCIS runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. 

 

4.  Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

 

5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

 

6.  We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

 

7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible, the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

APRIL 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the April 2019 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

 

April 2019 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	PHILIPPINES
EB-1	01FEB18	22FEB17	22FEB17	01JAN18
EB-2	C	01APR16	09APR09	C
EB-3	C	01AUG15	22MAY09	01MAR18

 

 

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	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	01JUL16	01JUN09	C
EB-3	C	01JAN16	01APR10	01JUL18

 

 

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

 

All Other: The EB-1 category moved one month.  We expect continued steady movement in this category for All Other.  We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

 

China: China EB-2 again moved three months, moving a almost one year in 2019’s calendar months.  EB-3 actually retrogressed, which reflects continued demand in EB-3, likely related to the many EB-3 “downgrades”. 

 

India: There was very little movement in any of the Indian categories.  EB2 moved just three days.  EB3 moved one month.  We are slightly more optimistic about India EB-3, which should continue to progress faster than EB-2.

 

Philippines: The EB-3 date showed great progress, improving four more months.  This continues a great year for EB3.  We expect continued progress in May’s Visa Bulletin.

USCIS ALLOWS PREMIUM PROCESSING FOR ALL H-1B PETITIONS

Effective Tuesday March 12, 2019, USCIS will again allow premium processing on all H-1B petitions.  While this is welcome news, the window of upgrading H-1B petitions to the Premium Processing Service may be short.  In 2018, USCIS suspended premium processing on H-1B transfers and amendments effective September 11, 2018. 

 

The only exceptions to the September 2018 USCIS premium processing suspension were for H-1B extensions (i) with the same employer or (ii) H-1Bs for cap-exempt institutions, such as Universities or research organizations. 

 

Accordingly, if you have a pending H-1B petition, you may only have a few months to upgrade to premium processing.  It is impossible to say what USCIS will do because the USCIS often makes these announcements with very little warning.  Conceivably, the USCIS may not even wait until September to suspend premium processing on H-1B transfers and amendments.

 

Although no announcement has been made, it is expected that USCIS will not allow April 1, 2019 cap-subject H-1B petitions to take advantage of premium processing.

THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS WILL DECIMATE NURSE IMMIGRATION

The Fairness for High-Skilled Immigrants Act (H.R. 1044), co-sponsored by Reps. Zoe Lofgren (D-CA), Ken Buck (R-CO), and 200+ bipartisan members and the companion Senate bill S. 386 sponsored by Sens. Mike Lee (R-UT) and Kamala Harris (D-CA) with 15+ co-sponsors) would amend the Immigration and Nationality Act by eliminating per-country caps for employment-based immigrant visas, aspires to a worthy goal: a more equitable immigration system.   However, this proposal as it is drafted, would inadvertently devastate access to health care in the United States by restricting the immigration and hiring of foreign-educated registered nurses.

 

It is not law but could become law in 2019.  In order to become law, the bill would need to pass both houses of the US Congress and be signed by the President.  It is likely at least several months before Congress takes any action on the bill.

 

The law allows for 140,000 Employment-Based visas per year, of which 80,080 are used by EB-2 and EB-3. The Fairness Act does not change these numbers. It just re-orders the queue in which the numbers are claimed.  As of April 2018, there were approximately 550,000 EB-2 and EB-3 Indian immigrants and their spouses and minor children waiting for green cards. Additionally, there are 25,000 Chinese and 21,000 Philippine immigrants and their spouses and minor children also waiting for green cards. No other countries have material retrogressions. In total the visa backlog for EB-2 and EB-3 is about 596,000.

 

At a run rate of 80,080 per year and a backlog of 596,000, there will be a permanent EB-2, EB-3 retrogression of 7.45 years (596,000 / 80,080 = 7.45).  No hospital is going to sponsor a nurse today who is not going to arrive for 7.45 years. 

 

Unlike IT workers, nurses are ineligible for H-1B visas.  Therefore, while IT professionals are able to work inside the US while awaiting their retrogression, nurses and other healthcare occupations would need to wait outside the US for 7+ years.

 

The Fairness for High-Skilled Immigrants Act has a worthwhile aim: eliminating the incredibly long backlog for Indian EB2 and EB3 applicants.  Musillo Unkenholt is in favor of the bill, provided that it is modified in a way to allow nurses to continue to come to the US.  As it is currently structured, the Fairness for High-Skilled Immigrants Act would eliminate nurse immigration into the US.

STAFFING AND SERVICES COMPANIES UNDER ATTACK FROM USCIS

Staffing companies are under attack from the USCIS. H-1B denial rates at service and staffing companies greatly exceed H-1B denial rates at non-staffing companies. For instance, a recent Forbes article points out that,

“In FY 2018, USCIS denied 80% of the H-1B petitions for new (initial) employment for Capgemini, a French multinational, 61% for U.S. company Cognizant, and between 34% and 54% for IT services companies Syntel, Infosys, Mindtree and HCL America. To put these figures in perspective, major U.S. tech companies, including Amazon, Facebook and Apple, had 1% or 2% of their new H-1B petitions denied in FY 2018.”

The problem was once limited to IT staffing companies, but MU is aware of many healthcare staffing companies who are also seeing unprecedented RFEs. A recent change to the LCA form now requires all H-1B employers to reveal client names and worksites.

Adding to the concern is the long-rumored H-1B regulatory change that will cement current H-1B policies against third-party placement of H-1B workers, make a stricter definition of specialty occupation, and raise prevailing wages. If past changes are any guide, these regulatory changes will probably have little basis in Congressional statute.