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Department of State Releases November 2014 Visa Bulletin

The bulletin shows slight forward movement in all employment-based preference categories, with the exception of the EB-2 India category, which will remain unchanged.

The U.S. Department of State (DOS) has released its November 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the November 2014 Visa Bulletin Say?

The November Visa Bulletin shows retrogression of more than four years in the cutoff date for the EB-2 India category.

The cutoff date for F2A applicants from all countries will advance slightly in October.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will retrogress by more than four years to February 15, 2005.The cutoff date for applicants in the EB-2 category chargeable to China will advance by 23 days to December 8, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to November 22, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by nine months to January 1, 2010, once again moving ahead of the cutoff date for EB-2 China. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by eight months to June 1, 2012.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: January 1, 2010 (forward movement of 275 days)
India: November 22, 2003 (forward movement of 7 days)
Mexico: June 1, 2012 (forward movement of 244 days)
Philippines: June 1, 2012 (forward movement of 244 days)
Rest of the World: June 1, 2012 (forward movement of 244 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The November Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through November 2014.

China

The October Visa Bulletin indicated a cutoff date of November 15, 2009 for EB-2 applicants chargeable to China. The November Visa Bulletin indicates a cutoff date of December 8, 2009, reflecting forward movement of 23 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to December 8, 2009 may file AOS applications or have applications approved in November 2014.

India

Throughout September and October, the cutoff date for EB-2 applicants chargeable to India was May 1, 2009. The November Visa Bulletin indicates a cutoff date of February 15, 2005, reflecting a retrogression of more than four years. This means that only applicants in the EB-2 category chargeable to India with a priority date prior to February 15, 2005 may file AOS applications or have applications approved in November 2014.

The cutoff date in the EB-2 India category had advanced rapidly in recent months through the use of “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act. The DOS’s Visa Office had warned that continued forward movement of this cutoff date could not be guaranteed and that increased demand in this category would require the retrogression of the cutoff date in order to hold number use within the fiscal year 2015 annual limit.

Developments Affecting the EB-3 Employment-Based Category

China

The October Visa Bulletin indicated a cutoff date of April 1, 2009 for EB-3 applicants chargeable to China. The November Visa Bulletin indicates a cutoff date of January 1, 2010, reflecting forward movement of 275 days. This means that applicants in the EB-3 category chargeable to China with a priority date prior to January 1, 2010 may file AOS applications or have applications approved in November 2014.

India

The October Visa Bulletin indicated a cutoff date of November 15, 2003 for EB-3 applicants chargeable to India. The November Visa Bulletin indicates a cutoff date of November 22, 2003, reflecting forward movement of seven days. This means that EB-3 applicants chargeable to India with a priority date prior to November 22, 2003 may file AOS applications or have applications approved in November 2014.

Rest of the World

The October Visa Bulletin indicated a cutoff date of October 1, 2011 for EB-3 applicants chargeable to the worldwide category. The November Visa Bulletin indicates a cutoff date of June 1, 2012, reflecting forward movement of 244 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to June 1, 2012 may file AOS applications or have applications approved in November 2014.

Developments Affecting the F2A Family-Sponsored Category

The October Visa Bulletin indicated a cutoff date of July 22, 2012 for F2A applicants from Mexico. The November Visa Bulletin indicates a cutoff date of September 22, 2012, reflecting forward movement of 62 days. This means that applicants from Mexico with a priority date prior to September 22, 2012 will be able to file AOS applications or have applications approved in November 2014.

The October Visa Bulletin indicated a cutoff date of February 1, 2013 for F2A applicants from all other countries. The November Visa Bulletin indicates a cutoff date of March 1, 2013, reflecting forward movement of 28 days. This means that F2A applicants from all other countries with a priority date prior to March 1, 2013 will be able to file AOS applications or have applications approved in November 2014.

Developments in the Coming Months

The DOS Visa Office predicts the following movement in the next three months:

F2A Family-Sponsored Category

The cutoff date in the F2A category will likely advance by three to five weeks per month.

Employment-Based Second Preference Category

The worldwide category will likely remain current.
The cutoff date in the EB-2 China category will likely advance by three to five weeks per month.
The cutoff date in the EB-2 India category will likely remain unchanged.

Employment-Based Third Preference Category

The cutoff date in the EB-3 worldwide category will continue to advance rapidly for the next several months. Demand is expected to increase significantly, at which point, the cutoff dates will be adjusted accordingly.
The cutoff date in the EB-3 China category is expected to advance rapidly in the next few months. Demand is expected to increase and may result in adjustments to the cutoff date by February 2015.
The cutoff date in the EB-3 India category will advance little, if at all.
The cutoff date in the EB-3 Mexico category will remain at the worldwide date.
The cutoff date in the EB-3 Philippines category will remain at the worldwide date. Increased demand in this category may result in adjustments to the cutoff date later in the fiscal year.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the November 2014 Visa Bulletin in its entirety, please visit the DOS website.

U.S. Supreme Court Declines to Hear Wisconsin’s Same-Sex Marriage Case: How Does This Affect the Administration of an Employer’s Employee Benefits?

On Monday, October 6, 2014, the U.S. Supreme Court denied certiorari in Wolfe v. Walker. As employers will recall, in June 2014, U.S. District Court Judge Crabb found that Wisconsin’s 2006 constitutional amendment barring recognition of same-sex marriages violated the equal protection clause of the U.S. Constitution. In September 2014, the Seventh Circuit affirmed that decision. The Supreme Court’s action means that Judge Crabb’s decision stands.

What Is the Effect of the Supreme Court’s Ruling? Hereafter, Wisconsin and its respective governmental subdivisions must issue same-sex marriage licenses and must recognize same-sex marriages, whether formed in Wisconsin or in other jurisdictions. Moreover, the ruling affects employer-provided employee benefits.

Eligibility for Health Plan Coverage. The ruling has different implications depending upon the type of health plan at issue. For ERISA plans, there is some uncertainty regarding how this will play out moving forward because of ERISA preemption. Following the 2013 U.S. Supreme Court decision in United States v. Windsor, the Department of Labor announced in guidance that it would interpret the terms “spouse” and “marriage” to include same-sex marriages valid in the state of celebration. However, since it appears that neither Windsor nor Wolf nor the DOL guidance addresses private discrimination or imposes an obligation on employers to provide same-sex benefits, ERISA may still preempt a state discrimination law.

There is an additional nuance under state insurance laws. The Department of Health and Human Services (HHS) has mandated that health insurance issuers providing policies that cover spouses ensure that same-sex spouse coverage is also available to consumers. The guidance HHS provided, however, does not mandate that employers obtaining that coverage actually offer the benefit. It is unclear how this will play out under state insurance law (which applies to insured ERISA plans) and further guidance from the state is required.

For plans that are not subject to ERISA, the preemption argument disappears. Thus, such non-ERISA plans failing to offer such coverage may now violate Wisconsin’s Fair Employment Act, which prohibits discrimination on the basis of sexual orientation and marital status. Even so, those plans that are exempt from ERISA because they constitute “church plans” may be able to assert a religious exemption from discrimination rules.

Employers contemplating providing only opposite-sex spousal benefits should be in close contact with their legal counsel regarding the risks associated with such a decision. Further, it will be very important to ensure that “spouse” is defined with precision in the plan materials.

Imputed Income. Previously, the Wisconsin Tax Code treated employer-provided coverage for same-sex spouses of employees as taxable income and Wisconsin employers were required to treat such coverage as imputed income for Wisconsin withholding purposes. Now that Judge Crabb’s decision has been permitted to stand, Wisconsin employers must stop imputing income for state tax purposes to employees who receive coverage for same-sex spouses (and certain dependents). Employers will also need to pay attention to how the Wisconsin Department of Revenue addresses the taxation of income that was previously imputed; that is, how employees and employers might recover excess amounts withheld by the state government based upon imputed income in prior months and years.

Note, nothing has changed as it relates to domestic partners benefits – employees are still subject to imputed income where the employee obtains coverage on behalf of his or her domestic partner.

Family and Medical Leave. As we advised in a June client alert, family and medical leave under the state law is largely unaffected by this decision because domestic partner coverage was already contemplated by the state law and same-sex spouses were deemed domestic partners for such purposes.

On a federal level, this decision accelerates the effective date of proposed regulations issued earlier this year by the U.S. Department of Labor in response to Windsor. Earlier this year, the Department of Labor issued proposed regulations to change the FMLA’s definition of spouse from an individual who is recognized as a spouse under the state law in the place of the employee’s residence to an individual who is considered legally married to the employee based upon the laws of the state of celebration. These regulations are not yet finalized. Nevertheless, the Supreme Court’s decision means that even under the current regulations Wisconsin same-sex married couples will be considered spouses for purposes of FMLA administration.

What should employers do now?

Account for those same-sex couples who may have been married in a state that permitted same-sex marriage or who are newly married in Wisconsin;
Determine if modification of benefit plan materials may be necessary;
Determine the appropriateness of a special enrollment opportunity to couples married in other jurisdictions prior to the Supreme Court’s ruling who would not otherwise be eligible for a HIPAA special enrollment opportunity based upon the date of the wedding; and
Determine if modification of FMLA policy/forms is warranted based upon the changes.

ARTICLE BY

Charles P. Stevens

Michael Best & Friedrich LLP

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Ex Parte Communications between Treating Physician and Attorneys in Tennessee

Under HIPAA, physicians are permitted to disclose “protected health information” to their attorneys for purposes of their own healthcare operations. This allows physicians sued by patients for malpractice to provide their attorneys with the information needed to prepare and present a defense. Ordinarily, subpoenas or orders are a part of a court ordered deposition or trial at which the patients or their attorneys are present, so the need to protect health information is lessened.

HIPAA does not allow treating physicians in one practice to disclose “protected health information” to attorneys for a treating physician in another practice unless a subpoena or an order of a court permits that disclosure. Instead, HIPAA allows members of a group practice to transmit protected health information concerning a patient to business associates of that practice. This means that attorneys representing the other physicians in the group practice can receive information related to the practice’s healthcare operations, including information relating to representing the practice in malpractice lawsuits. A subpoena or court order is not required for this disclosure. Thus, when a physician is being sued for malpractice, HIPAA permits the practice’s attorney to meet with other physicians in that same practice and obtain protected health information related to the plaintiff.

While HIPAA may permit the disclosure of protected health information in this circumstance, state law is another matter altogether. For example, the Tennessee Supreme Court found that an implied covenant of confidentiality exists between the treating physician and his or her patient. Like HIPAA, this implied covenant of confidentiality absolutely prohibits an attorney for a treating physician from meeting with another treating physician unless the patient or the patient’s attorney is present. Like HIPAA, the court assumes that the patient’s interests are protected when the patient is present.

This in turn begs the question – does the implied covenant of confidentiality prohibit a physician employed in a group practice from meeting with the attorneys representing another employee of the practice who has been sued for malpractice without the patient being present? In Tennessee, this issue was recently addressed in Hall v. Crenshaw, W2013-00662-COA-R9-CV (Tenn. Ct. App. July 18, 2014). The court of appeals in Hall held that the implied covenant of confidentiality does not prohibit a physician in a group practice from meeting with attorneys representing another employee physician of the practice. The court of appeals reasoned that a corporation can only function through its agents and employees. Under state law, all knowledge of the corporation’s employees is imputed to the corporation. As a result, the court held that the corporation already possessed this information, meaning the corporation, through its employees, is able to discuss a patient’s medical record and history with the attorneys representing the corporation and its employees.

ARTICLE BY

Keith C. Dennen

Dickinson Wright PLLC

St. Jude’s Church Loses Historic Designation

Last month, the Miami-Dade Circuit Court stripped St. Jude Melkite Catholic Church of its recently acquired historic designation. This church is located at 1501 Brickell Avenue, in the midst of multiple high rise condominiums and office buildings. It occupies one acre of some of Miami’s most valuable property.

St. Jude's Church The court held that, in making the designation, the City failed to properly consider the church’s religious significance. Miami’s Historic Preservation Ordinance “expressly excludes properties owned by religious institutions or used for religious purposes unless the religious property derives its primary significance from its architecture, artistic distinction or historical importance rather than its religious purpose. This criterion requires a comparison of the site’s religious importance.” Diocese of Newton Melkite Church v. City of Miami, 2014 WL 4730075 (Fla. Cir. Ct. Sept. 16, 2014), at *3. Writing for the court, Judge Miguel de la O wrote, “[t]he record before us is devoid of any comparative analysis of St. Jude’s religious importance versus its historical and architectural importance. . . . This failure is fatal under the [Historic Preservation] Ordinance and compels us to conclude that the City did not follow the essential requirements of the law.”

This legal battle ensued in 2013, prompted by rumors that St. Jude’s may sell the property to capitalize on its prime real estate. Fearing sale and destruction of the 67-year-old church, concerned congregation members and preservationists banded together to lobby for the designation of the church as a historically and architecturally significant site under the Miami Historic Preservation Ordinance. Such a designation impedes the owner’s ability to sell and architecturally modify the property. According to St. Jude’s attorney, parishioners opposing the designation worried that historical status would make upkeep more expensive and would limit St. Jude’s ability to make certain aesthetic modifications to bring the architecture into conformity with the Melkite doctrine.

Historical designation is available if a property…

• maintains significance in the historical, cultural, archeological, aesthetic or architectural heritage of the city, state or nation

• possesses integrity of design, setting, materials, workmanship, feeling and association

• is associated with important people, events or community developmental patterns or trends

• is representative of distinctive architectural styles, periods, methods of construction, a particular architect or builder’s work, or demonstrates significant innovation or adaptation to the South Florida environment, and ability to yield information important in prehistory or history.

In order to procure the designation, proponents pointed to the church’s Romanesque architecture, its connection with Operation Pedro Pan and the fact the church was host to an all-girls academy run by Sisters of Assumption, a Catholic order, for three decades. The diocese, which opposed the designation, argued that the church’s religious use far outweighed any purported historical significance. When the designation failed to receive the requisite number of commissioner votes, the City passed a special resolution to designate the church as a “local historic site.” The City did not make any findings of its own, but instead relied solely upon the Designation Report created by the Preservation Board.

The recent appellate ruling quashed the designation, creating speculation about whether the church will eventually sell the property or its air rights.

ARTICLE BY

Robert M. Siegel

Shalia Sakona

Bilzin Sumberg Baena Price & Axelrod LLP

Ebola Response Missing A Critical Player

The Obama Administration has mobilized a number of government agencies to respond to the Ebola crisis in West Africa and to prevent its spread into the U.S. At the frontline of the Administration’s response is the Pentagon, the Department of Health and Human Services, the Center for Disease Control, the U.S. Agency for International development and, more recently, the Department of Transportation.

Conspicuously missing, however, is the Department of Commerce, which traditionally is the link to the U.S. private sector.

This omission is significant because U.S. companies are likely to get materials to the stricken countries of Liberia, Sierra Leone and Guinea more quickly than the Pentagon. In the instances in which they operate locally, the companies provide a valuable source of information and delivery infrastructure.

For example, in mid-August, more than 20 leading medical companies shipped 40 tons of supplies and protective equipment to Liberia. The airlift was coordinated by the California-based NGO, Direct Relief, and facilitated by Fedex. Companies such as Pfizer, Teva, Merck, Kimberly-Clark and Mylan Laboratories contributed 2.3 million gloves, 65,000 masks and 185,000 tabs of antibiotics. As of September 20th, Direct Relief had coordinated 11 shipments of supplies.

Equally important is the Ebola Private Sector Mobilization Group (EPSMG) which is a network of more than 40 companies active in West Africa and, especially, Liberia, Guinea and Sierra Leone. Chaired by ArcelorMittal and including companies such as Chevron, Rio Tinto and BHP Billiton, the group seeks to provide a single access point for the private sector to help mobilize and coordinate a response. The group’s first principal is to “be part of the region’s long-term economic and social recovery and development.” EPSMG has met with Dr. Margaret Chan, Director General of the World Health Organization, and the U.S. ambassador to Liberia, Deborah Malac, and engaged with organizations such as the UN Ebola Task Force, the World Bank and various NGOs.

The in-country private sector plays other important roles. ArcelorMittal, which has a workforce of nearly 3000, provides health care for its workers and their families and uses its internal communications network to convey accurate and timely information about the epidemic. Firestone Rubber, which has been in Liberia since 1926, detected in first case of Ebola on March 30th, according to NPR. Since then, the company went into crisis mode, built its own treatment center and developed a comprehensive response that effectively stopped the transmission of the virus among more than 80,000 employees and family members who live on the sprawling plantation.

Local companies such as the National Oil Company of Liberia and the Sierra Leone Produce Marketing Company have also made contributions to combatting the virus.

The importance of the private sector’s role in responding to health emergencies cannot be underestimated. Companies such as Anglo-American, SABMiller and Ford Motor Company played critical roles in combatting the HIV/AIDS crisis in South Africa by making medicines and quality health care available to their employees and their families, and they continue to play this role.

The U.S. Chamber of Commerce and the Corporate Council on Africa are to be applauded for the role that they have played in helping to coordinate and publicize the U.S. private sector response to the Ebola crises.

The Obama Administration has effectively integrated the private sector into key development initiatives such as Power Africa and the New Alliance for Food Security and Nutrition, which is the private sector component of Feed the Future. It would do well to establish a similar mechanism as part of its Ebola response. Controlling the spread of Ebola and the development of viable health care systems in the three affected countries will require the sustained engagement of governments, NGOs, international organizations and agencies and the private sector. The sooner that all parties are able to coordinate their efforts the more likely this virus will be controlled.

ARTICLE BY

Witney Schneidman

Covington & Burling LLP

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November Visa Bulletin Confirms Fears of Significant Retrogression for EB-2 India

The Department of State released its November Visa Bulletin today. It is a mixture of good news and really bad news. The good news is that the EB-2 and EB-3 categories for all countries, except for India, continue to experience forward movement. Worldwide, EB-2 availability remains current and EB-3 availability advanced to June 1, 2012. China also experienced forward movement, with EB-2 advancing to December 8, 2009, and EB-3 advancing to January 1, 2010.

The really bad news in the Visa Bulletin relates to visa availability for India. As expected, EB-2 availability for India retrogressed by more than four years, from May 1, 2009, to February 15, 2005. EB-3, however, advanced by one week to November 22, 2003.

The Visa Bulletin also contains projections for future months. Visa availability in the EB-1 (all countries) and EB-2 (worldwide) categories are expected to remain current over the coming months. EB-3 worldwide availability is expected to experience rapid forward movement for the next several months. For China, EB-2 availability is projected to increase by three to five weeks per month, and rapid forward movement is also expected in the EB-3 category, with potential retrogression in February. India is not expected to have any forward movement in the EB-2 or EB-3 categories.

In short, individuals from India face a bleak outlook in green card availability over the next few months, while the future is brighter for individuals from all other countries.

EB Category	Worldwide	China	India
EB-1	Current	Current	Current
EB-2	Current	12/08/2009	02/15/2005
EB-3	06/01/2012	01/01/2010	11/22/2003

ARTICLE BY

Scott T. Decker

Greenberg Traurig, LLP

Renewal Deadline – 1 Year Trademark Clearinghouse Registrations

If your company was an early registrant in the Trademark Clearinghouse, it is likely your registrations had an effective date of November 5, 2014, the date the Clearinghouse went “live.” If so, the deadline to renew one-year registrations is November 5, 2014.

ARTICLE BY

Sterne, Kessler, Goldstein & Fox P.L.L.C.

The National Law Forum

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Like this:

Department of State Releases November 2014 Visa Bulletin

The bulletin shows slight forward movement in all employment-based preference categories, with the exception of the EB-2 India category, which will remain unchanged.

What Does the November 2014 Visa Bulletin Say?

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

China

India

Developments Affecting the EB-3 Employment-Based Category

China

India

Rest of the World

Developments Affecting the F2A Family-Sponsored Category

Developments in the Coming Months

F2A Family-Sponsored Category

How This Affects You

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U.S. Supreme Court Declines to Hear Wisconsin’s Same-Sex Marriage Case: How Does This Affect the Administration of an Employer’s Employee Benefits?

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Cast your vote for the NLR to receive a small business grant from Mission Main Street and Chase

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Ex Parte Communications between Treating Physician and Attorneys in Tennessee

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St. Jude’s Church Loses Historic Designation

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Ebola Response Missing A Critical Player

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November Visa Bulletin Confirms Fears of Significant Retrogression for EB-2 India

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Renewal Deadline – 1 Year Trademark Clearinghouse Registrations

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