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Chris Musillo on Nurse and Allied Health Immigration

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  1. JUNE 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

    by , 05-10-2017 at 01:56 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State has just issued the June 2017 Visa Bulletin. This is the eight Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.

    June 2017 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
    01JAN12
    01JAN12
    C
    C
    2nd
    C
    01MAR13
    01JUL08
    C
    C
    3rd
    15APR17
    01OCT14
    15MAY05
    15MAR17
    01MAY13

    MU Law Analysis

    All Other: The EB-2 has been current for many years. The EB-3 progression continues, moving an additional one month. Consular processs EB-3 are effectively current.

    China: The DOS has instituted a retrogression for China EB-1. The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017.

    The China EB-2 date again moved up, but only a few weeks. The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date is being held for the month of June. Continued heavy demand for numbers will require a retrogression of China EB-3 no later than August.

    India: As with China, India EB-1 now is retrogressed. It is expected that this EB-1 retrogression will last until October 2017.

    EB-2 India moved up about two weeks. EB-3 India actually moved up almost two months. It is our expectation that these two categories will move very slowly in the foreseeable future.

    Mexico: Mirrors All Other in all aspects.

    Philippines: EB-3 moved ahead by yet another four more months. The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, and half of 2013 EB-3 visas in about 6 months. This is even more positive than we 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.").



    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 and follow us on Twitter.
  2. USCIS COMPLETES DATA ENTRY OF H-1B CAP PETITIONS

    by , 05-03-2017 at 04:25 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    USCIS has just announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process. It may take a week or so for all of the H-1B cap receipts to be delivered. If a Beneficiary has not received an H-1B receipt notice in the next week or so, it stands to reason that they have not “won” the H-1B lottery.

    Shortly, USCIS will begin returning all H-1B cap-subject petitions that were not selected. USCIS is unable to provide a definite time frame for returning these petitions. USCIS will issue an announcement once all of the unselected petitions have been returned.

    In order to balance the distribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center.


    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 and follow us on Twitter.
  3. PT INTERSTATE LICENSURE COMPACT MAY GO LIVE IN 2018

    by , 05-02-2017 at 10:03 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    First reported by PT In Motion, The State of Washington became the tenth state to join the Interstate Licensure Compact for Physical Therapy (PTLC). The tenth state is key because that is the threshold for the Compact to become effective.

    Once fully live, the PTLC will allow PTs in one compact state to practice in another compact state without having to obtain another state PT license.

    The ten states are: Washington, Arizona, Kentucky, Mississippi, Missouri, Montana, North Dakota, Oregon, Tennessee, and Utah.

    Before the PTTC can go fully live, a Commission must be developed. The Commission will establish the rules governing interstate practice. It is expected that it will take about one year for the Commission to be established and the final rules promulgated.

    APTA is optimistic that more states will want to join the PTLC now that the ten state threshold has been reached. States that are interested in the PTLC should contact the APTA state affairs staff.


    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 and follow us on Twitter.
  4. COULD PRES. TRUMP REPLACE THE H-1B LOTTERY WITH A PRIORITIZATION SYSTEM BASED ON SALARY?

    by , 04-26-2017 at 09:25 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    One interesting legal question is whether the Trump administration could change the way that H-1B cap-subject petitions are allocated. Under the current system, if the H-1B cap is reached the USCIS conducts a random lottery of all H-1B cap petitions that are filed during the first week of April.

    There is no Congressional authority for the H-1B lottery. One federal court has said that USCIS’ implementation of an H-1B lottery is reasonable because Congress did not instruct the USCIS what to do if the H-1B cap when oversubscribed. This case, Walker Macy v. USCIS, was just decided earlier this spring and is now on appeal.

    The Trump administration says that it seeks reform to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Could the Trump administration attempt H-1B reform by replacing the H-1B lottery with an H-1B prioritization system based on the “most-skilled or highest-paid petition beneficiaries?”

    My read is that it cannot. As noted in the Walker Macy case, “when Congress is silent about a particular agency (or judicial) interpretation for a long period of time after that interpretation while repeated amendments have been passed, this demonstrates legislative acquiescence to the interpretation.” In other words, the fact that the USCIS has long been using an H-1B lottery is compelling.

    The random process of the H-1B lottery is also fundamentally fair since it treats all timely-filed H-1B petitions identically. Surprising to some, Congress has not spoken on the need to prioritize the “most-skilled or highest-paid petition beneficiaries”. In fact, Congress has set forth a different standard.

    An H-1B is appropriate if a US employer is paying at least the prevailing wage of the occupational classification. There is nothing in the Congressional statute that favors employers who pay a greater wage. Therefore, it is dubious whether the Trump administration can implement this change to the H-1B lottery without Congressional action.


    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 and follow us on Twitter.
  5. WHAT TRUMP CAN AND CANNOT DO TO THE H-1B

    by , 04-25-2017 at 08:35 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The US legal and legislative system framework is one checks and balances. The legislative branch – the Senate and House of Representatives – creates and passes law, which in most instances must also be signed by a President.

    The executive branch, which now is headed by President Trump, is tasked with administering US federal law. The President typically works through agencies and departments in order to administer the law. For instance, the Department of Homeland Security administers laws concerning, among other things, US immigration. The executive branch’s authority is limited by the underlying law that is passed by Congress.


    (As an aside, the President’s authority to administer law is also limited by the third branch of government—the judiciary. In the short Trump presidency, we have seen several instances where the judiciary has not backed down from exercising their authority and limiting President Trump’s executive action.)

    The scope of an underlying Congressional law is what limits the President. Accordingly, there are some things that President Trump can consider to do, and other things that he probably cannot do.

    Here is our list of H-1B-related changes that President Trump can probably because these actions probably do not exceed the underlying Congressional statute.


    • Revoke H-4 / EAD authorization. This rule was put in by President Obama’s administration.
    • Revoke prior Guidance Memoranda that is favorable to the H-1B program. In fact, he has already started down this path by revoking a 17 year old memorandum on the approvability of Computer Programmers.
    • Increase H-1B employer or employee site visits. Site visits are clearly within Presidential authority. Again, the USCIS has recently released a press release notifying US employers of increased site visits.
    • Increase obtuse/harassing RFEs and NOIDs. The President has indicated to DHS that it would like to see DHS use all its power to interpret rules against H-1B users.
    • Delay Consular approvals under a cloak of “background checks”. The President generally has wide latitude to process or delay visa approvals.


    Our next post will address whether the Trump administration could change the H-1B lottery to a system whereby H-1B lottery slots were awarded based on another criterion, such as the salary offered to the H-1B worker.

    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 and follow us on Twitter.
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