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Chris Musillo on Nurse and Allied Health Immigration

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  1. JULY 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

    by , 06-18-2018 at 03:42 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

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

    July 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
    01JAN15
    01MAR09
    C
    C
    EB-3
    C
    01JAN13
    01NOV08
    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
    01JAN12
    C
    C
    EB-2
    C
    01APR15
    22MAY09
    C
    C
    EB-3
    C
    01JAN16
    01MAY09
    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 often happens as we get closer to the end of the fiscal year, each categories moves with a higher variance than is usual. We expect that China EB-1 and EB-3 are essentially fully used, which means that there will be no numbers until after October 1, 2018. On the other hand, the China EB-2 number progressed about 6 months, reflecting than "downgrade" demand that has occurred in the last several years.

    India: As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018. EB-2 and EB-3 continued their steady progress. Rumors are flying around the internet about a massive progression of EB-3. We expect steady progressions for Indian EB-3, reflecting lower demand for these visas in 2008-09.

    Mexico: Mirrors All Other in analysis.

    Philippines: Phils EB-3 stayed the same. As with China EB-1 and EB-3, and India EB-1, this probably means no forward progression until October 1, 2018, when the new fiscal year begins. There is a minimal chance of a small progression in the next few months.

    _____________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.

    Updated 06-18-2018 at 04:10 PM by CMusillo

  2. DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?

    by , 06-06-2018 at 08:48 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    Thank goodness the answer is NO. Green cards are still viable for roving employees and for staffing company employees.

    Nevertheless, the rumor that the DOL has “cancelled” the long-standing Farmer Memo has been flying around the internet. A cancellation of the Farmer Memo could be seen a massive strike against the viability of “roving employee” green cards, which make up the bulk of IT and healthcare staffing company’s green cards.

    Thankfully, AILA has confirmed that the rumor is false. The Farmer Memo is still good guidance for PERM green cards. The recent "cancellation" notification of the Farmer Memo that appeared on the DOL website is “simply an administrative system update that does not reflect any policy change.”

    The Farmer Memo, which has existed since 1994, provides the basis for green cards where the employer does not know where the employee will actually work, as is the case for most staffing companies. The Farmer Memo instructs staffing company petitioners to use the employer’s headquarters as the “worksite”. The Memo has been cited by the DOL countless times as good law, notably in Matter of Amsol.


    Relevant section of the Farmer Memo


    10. LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUS UNANTICIPATED SITES Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.

    In Item 7 (address where alien will work) of part A of the Application for Alien Employment Certification, the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S. A short statement should also be included explaining why it is not possible to predict where the work sites will be at the time the application is filed.



    No Impact on Schedule A cases

    Even if the Farmer Memo had been cancelled, Schedule A cases would not have been impacted. Schedule A cases are green card petitions for Nurses and Physical Therapists. The DOL’s PERM FAQ website still contains this FAQ (Notice of Filing FAQ #12), which allows roving employees and provides guidance on how to prepare Schedule A green card petitions.


    12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?

    If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

    If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

    If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.

    ______________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.
  3. DINNER AT AILA ANNUAL

    by , 05-23-2018 at 09:06 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    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.

    _____________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.
  4. USCIS FINISHES H-1B LOTTERY

    by , 05-17-2018 at 08:41 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    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.

    _____________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.
  5. TWO MAJOR CHANGES FOR F-1 STUDENTS

    by , 05-16-2018 at 08:32 AM (Chris Musillo on Nurse and Allied Health Immigration)

    by Maria Schneider


    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.

    _____________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.
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