MU LAW'S OFFICE CLOSING EARLY ON JULY 30

Musillo Unkenholt LLC turned five years old on July 1, 2014!  It would have been impossible to have our five years of success without the hard-effort and talent of our Legal team.  In celebration of our fifth birthday and in recognition of everyone's hard work, we will closing the office at 12 noon (ET) on Wednesday July 30.  We are having a group outing at the Cincinnati Reds baseball game.  If you contact us during the afternoon of July 30, rest assured that we will promptly return your call or email on Thursday.

ANALYSIS OF THE NEW USCIS MEMO ON H-1B FOR RNs

USCIS has just published and released an updated H-1B Memorandum which purports to provide guidance to USCIS officers in their adjudication of H-1B petitions for Registered Nurses.  This Memorandum updates the long-standing 2002 Johnny Williams USCIS Memorandum on the same subject.  The new Memorandum does not break new ground.  It is not expected that the Memorandum will result in a significant increase in approved H-1B petitions, although its Background section helpfully reminds USCIS officers that “there are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation”.

USCIS officers presently deny nearly all H-1B petitions for Registered Nurses, regardless of the specific facts of the petition.  The fundamental problem for RNs seeking H-1B status is that few US Registered Nurse positions in the US require a Bachelor’s degree in Nursing for entry into the position.  In order to have an H-1B approved it is not enough that the applicant holds a Bachelors’ degree; the position itself must require a Bachelor’s degree.  The Memorandum makes this clear: “Registered nurses generally do not qualify for H-1B classification” (Page 2).

Even nurses who work in units where 100% of the nurse workforce holds Bachelors of Science in Nursing (BSN) have seen H-1B denials.  These denial opinions dismiss the employer’s facts, and simply cite to the Occupational Outlook Handbook, which generally says that nursing positions do not require Bachelor’s degrees.

As the Williams Memorandum explained, the new Memorandum confirms, there are exceptions to this general rule.  For instance, the new Memorandum favorably recognizes that hospitals with magnet status, “indicates that the nursing workforce within an institution has attained a number of high standards relating to quality and standards of nursing practice” (Page 3).  The Memorandum then buries in footnote 9 a very important fact: “For example, as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.”  This Memorandum would have been improved if the author had plainly stated that Nurse Manager positons at Magnet hospitals qualify for H-1B visas.  Nonetheless, this acknowledgement should be helpful in future H-1B petitions for Magnet Hospital Nurse Managers.

Beyond this section on Magnet hospitals the new Memorandum offers little guidance for USCIS officers.  In several places the Memorandum tells officers to analyze cases on the facts of the petition and on a case by case basis, which is apparent.

The new Memorandum mirrors the Williams Memorandum in that it reminds officers that Advance Practice Nursing position are generally specialty occupations and approvable for H-1B visas.  It also helpfully recognizes that some specialties, such as critical care and peri-operative (operating room) may qualify for the H-1B.

While USCIS HQ missed an opportunity to be clearer about which RN positions were approvable for H-1B visas, the Memorandum shows that the USCIS is aware of the issue.

FCCPT VERIFICATION OF INDIAN EDUCATION

All foreign-educated Physical Therapists must be issued a Healthcare Worker Certificate prior to receiving a temporary (e.g. H-1B or TN) or permanent visa, as per 8 CFR 212.15(c):.  Two originations are permitted to issue these HWC’s.  CGFNS issues the Visa Screen, which is also issued to qualified Registered Nurses, Occupational Therapists, and several other healthcare occupations.  FCCPT issues the FCCPT Type I Certificate.  The FCCPT Type I is only issued to Physical Therapists. 

The HWC verifies that the foreign educated Physical Therapist has (i) qualifying education, training, licensing, and experience; (ii) passed a qualifying English fluency exam; and (iii) passed the actual licensing exam (NPTE exam). 

The FCCPT recently published an update about their verification of Indian distance education.  At issue is whether the educational experience is post-Secondary education and is not continuing education.  Several criteria are now considered by FCCPT.

-                      Verification that the study center does not violate the jurisdiction territory as outlined by the University Grants Commission (UGC).

-                      Evidence that the study center is not franchised. This means that it cannot be affiliated to more than one university.

-                      Verification that the University is in charge of admissions to the distance education program.  Admissions cannot be done by study centers as per UGC regulation.

-                      That the program is authorized to be offered through distance education by the Distance Education Council (DEC). Even though the DEC has been disbanded by the UGC, the regulations stay in effect until the UGC publishes new standards.

H-1B FOR NURSE EDUCATORS

To qualify for an H-1B, the position must require and the employee must hold a bachelor’s degree or greater.  As a result, most nursing positions do not qualify for H-1B as a BSN is not typically required for a floor nurse position.  Nurses who are eligible for an H-1B include: a nurse educators, nurse managers, or specialty nurses where the position requires a higher level of education.

Earlier in the year, MU Law received a denial in a case for a Nurse Educator position.  The USCIS denied the petition, holding the position did not require a bachelor’s degree or greater – a requirement for H-1B status. 

After the denial, we appealed the case to the Administrative Appeals Office (AAO), which is the body that reviews appealed USCIS Service Center decisions.  We believed and argued that the evidence shows that the preferred credential for teaching in the academic setting is the doctoral degree.  At a minimum, nurse educators at colleges and universities must hold a master’s degree in nursing and have additional training in the science of teaching.

We have recently received word that our appeal was successful. MU successfully argued that the position of Nurse Educator requires a master’s or doctoral degree and so therefore not only meets, but exceeds, the H-1B requirements.  The appeal was sustained and the H-1B is now approved.

A nursing shortage in United States is expected to continue in  the coming years, as the US economy continues to recover and older nurses begin retiring.  This will only make the need for qualified nursing faculty more critical and the H-1B a viable option for schools looking to hire nursing faculty.

H-4 EAD COMMENT PERIOD HAS ENDED

Earlier this year the USCIS proposed a rule that, if enacted will allow H-4 spouses to file for work authorization.  The rule, if passed as drafted, will allow H-4 spouses of H-1B holders to obtain EAD employment authorization.

Under the law, when a new rule such as this is proposed, the USCIS must give the public 60 days to comment on the proposed rule.  That comment period ended on Friday July 11.  The USCIS will now sort through the comments.  Computerworld notes that adoption of the proposed rule is “all but assured.”  The timing of the “assured” approval is unknown at this time.

The Computerworld article has an interesting discussion about the types of comments that have been received and how an automated tool can mine the comments for trends.  For instance, out of 6,035 non-unique comments, “453 were exact duplicates of 10 different comments.”

AUGUST 2014 VISA BULLETIN

The Department of State has just released the August 2014 Visa Bulletin.  This is the eleventh Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 jumped again.  It is now at June 2010, which is a three year jump in the last three months.

India EB-2 also moved forward.  It progressed to January 2009.

The Chinese EB-3 number continued to move dramatically and inconsistently.  It is now at November 2008.  

The All Other EB-3 held steady as well.  It remains at April 2011.  Our sense is that it will not progress until the next US fiscal year.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08OCT09	22JAN09	C	C
3rd	01APR11	01NOV08	08NOV03	01APR11	01JUN10

PNAA ANNUAL CONVENTION

The Philippine Nurses Association of America just held its 35th Annual Convention.  This year's Convention was held in Las Vegas, NV.  MU Law was proud to be a featured sponsor of the event, as we have for the last five years.  

Check out the MU Law Facebook page to see pictures from this year's event.

We encourage Philippine nurses to explore this great organization.  

FIVE YEARS AS MU LAW

Today marks the five year anniversary of the Musillo Unkenholt LLC law firm. We are proud of the work that we have done here on behalf of our many clients.   The "unsung" heroes of the firm are our experienced paralegal team, many who have been with us for the entire five years.  Thanks to everyone for all your support over these five years!

VISA PROJECTIONS FOR THE NEXT FEW MONTHS

MU Lawyers were at AILA’s annual convention in Boston last week.  In discussing the Visa Bulletin with several attorneys, and piecing together some information from DOS officials, here are our unofficial projections for the remainder of Fiscal Year 2014, which ends September 30, 2014.

EB-1  

EB-1 is expected to stay current through the Fiscal Year.

EB-2

China:  Chinese EB-2 numbers could progress, although it does not appear that it will move too quickly.

India:  Indian EB-2 numbers jumped dramatically between May and June 2014, progressing nearly four years to September 2008.  Our sense is that the Indian EB-2 number will continue to stay in 2008, and will continue to progress because the DOS does not want a single visa to go unused in this category.  The number may temporarily become unavailable in September 2014, which is common.

All Other: All other EB-2 should remain Current for the remainder of the Fiscal Year.

EB-3

China: Chinese EB-3 numbers have been on a wild ride this year.  They were into 2012 for much of the year before a massive retrogression in June.  There is a sense that the DOS is unsure just how many numbers are needed.  MU Law’s read is that the number will progress this summer, perhaps several years.  Again, the DOS is trying to insure that all numbers in this category are used.

India: The DOS has this category accurately projected.  As a result India EB-3 will continue its very slow progression.

Philippines:  It seems unlikely that this number will get into 2010.  That having been said, the number should progress steadily in FY 2015.

All Other:  The DOS tapped the breaks on this number in June, stalling it at April 2011.  MU Law’s sense is that the number will progress before becoming temporarily unavailable later in the Summer. 

WANT TO HAVE 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. We have about 15 people signed up already.  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 by Monday. Friends, spouses, etc. are also welcome.

COULD REP. CANTOR’S LOSS HELP IMMIGRATION REFORM?

Well, in spite of my headline the answer is probably not, but there is some hope.

Rep. Cantor (R-VA) was the second-in-command in the Republican-majority House of Representatives.  It is generally believed that any material Immigration Reform measure must be driven by the House Republicans.  Rep. Cantor was generally known to be a pro-business Republican, who was helping push for immigration reform behind-the-scenes, or at least that is what his primary opponent, Dave Brat, led central Virginians to believe.  Mr. Brat’s shocking primary upset on Tuesday seems to mean that immigration reform is dead for 2014.

So could Rep. Cantor’s loss actually help?

It seems unlikely but it may not be as bad as it seem today.  For one, other immigration-friendly southern Republicans, such as Sen. Lindsay Graham (R-SC), coasted to primary victories.  Second, and the reason for my provocative headline, is Rep. Kevin McCarthy (R-CA).  Rep. McCarthy is the next-in-line for Rep. Cantor’s No. 2 position within the House Republican leadership.  As this article in the Irish Central points out, Rep. Cantor “represents a central California district where pro-immigrant issues, immigrant issues, such as the need for immigrant labor among the huge farming concerns, are critical.  His district is 35 percent Latino and he is on record as favoring a version of immigration reform.”

Yet again leadership on the issue turns back to the Majority Leader Rep. John Boehner (R-OH).  Rep. Boehner has straddled the line between the pro and anti-immigration wings of his party, a line that seems aimless.  If he can articulate a strategy immigration reform might have a chance.  For now, all we have is glimmers of hope.

JULY 2014 VISA BULLETIN

The Department of State has just released the July 2014 Visa Bulletin.  This is the tenth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 jumped again.  It is now into 2009, which is a two year jump in the last two months.

India EB-2 also dramatically moved forward.  It progressed four years to September 2008.

The Chinese EB-3 number stayed back at October 2006.  

The All Other EB-3 held steady as well.  It remains at April 2011.  Our sense is that it will not progress until the next US fiscal year.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUL09	01SEP08	C	C
3rd	01APR11	01OCT06	01NOV03	01APR11	01JAN09

US EXTENDS CW-1 PROGRAM THROUGH 2019

Since 2008, the US has sought to harmonize the immigration laws of the Commonwealth of the Northern Mariana Islands (CNMI) with the mainland US.  Part of this initiative was the establishment of a CNMI-Only Transitional Worker (CW-1) visa classification allows employers in the CNMI to apply for temporary permission to employ nonimmigrant workers who are otherwise ineligible to work under other nonimmigrant worker categories. The CW-1 classification provides a method for transition from the former CNMI foreign worker permit system to the U.S. immigration system.  The law also provides a CW-2 for dependents of CW-1 visa entrants.

On June 3, 2014, the US Department of Labor announced that it was extending this program through December 31, 2019.  The CW-1 program had been set to expire at the end of this year.

Philippine nationals make up a large number of the CW-1 visas that are granted.  The US Embassy – Manila has a webpage dedicated to explaining the CW-1 process.

The largest island in the CNMI is Saipan, where 90% of the CNMI population resides.  For this reason many people use the “Saipan” to mean “CNMI”.

MAKING THE PAYMENT FOR THE PRODUCTION OF YOUR GREEN CARD

US Green cards are either approved domestically through the I-485, Adjustment of Status process, or approved abroad through the Consular process. When the approval is made at the Consulate, the immigrant must make a final payment of $165 to the USCIS before they will start the production of the green card.

The $165 USCIS Immigrant Visa fee is for the cost of producing the green card.  This payment must be made through the USCIS ELIS (Electronic Immigrant System) on-line payment system.

MU Law encourages you to make this payment after you receive the immigrant visa packet from the US Consulate or Embassy, before you come to the US.  Until this payment is made the USCIS will not start production on your green card.

At the time of your interview at the U.S. embassy or consulate, the DOS interviewing officer should give you a USCIS Immigrant Fee handout. This document provides instructions on how to pay the $165 immigrant fee and included your A-Number and DOS Case ID. Your A-Number and DOS Case ID are located in the top right corner.

OPTIONS FOR FOREIGN STUDENTS ON OPT

One of the largest blocks of applications for the H-1B cap is foreign students who are currently working on OPT (optional practical training).  Students who are authorized to work on OPT will hold an employment authorization document (EAD) or card.  The validity dates of the student’s work authorization under OPT will be printed on the face of the card.

Students with work authorization under OPT whose H-1B has been chosen under the cap are eligible for cap-gap work authorization.  The student should present the H-1B receipt notice to his/her international student office.  The school will issue a new I-20 to the student extending his/her work authorization to October 1 when the H-1B will take effect.

If the student’s H-1B has not been chosen under the cap, the student must stop working on the end date of his/her OPT authorization.  The student then has the following options:

1. If the employer participates in e-verify and the student’s degree is in a STEM (science, technology, engineering, and mathematics) field, the student may qualify for an extension of their OPT. 

2. The student can change to a different immigration status, such as H4 or L2. 

3. The student can return to school to seek a new degree.  The student should contact his/her school to have his/her SEVIS record updated or transferred to a new school.

4. The student can depart the US and return to his/her home country. 

At the end of the OPT period, the student has a sixty day grace period during which the student is not authorized to work but is authorized to remain in the US to conclude his/her affairs and pursue one of the options above.  

H-4 EAD RULE IS ELIGIBLE FOR COMMENT

The Department of Homeland Security has formally proposed the H-4 EAD rule.  The rule, if passed as drafted, will allow H-4 spouses of H-1B holders to obtain EAD employment authorization.  Several major news publications, including Bloomberg BNA, have picked up on the news.  MU Law attorney Chris Musillo was interviewed for the Bloomberg article. 

DHS estimates that this rule will allow about 100,000 H-4 spouses to obtain work authorization, representing a tiny proportion of the overall workforce (0.0647%), and that figure assumes that every single possible H-4 spouse immediately files for the work authorization.

On the other hand the enactment of the regulation will provide tangible benefits for the H-4 spouses who will be able to enter the labor market earlier than they would have otherwise been able to due to lack of visa availability.  The DHS continues,

While there would be obvious financial benefits to the H-4 spouse and the H-1B nonimmigrant's family, there is also evidence that participating in the U.S. workforce and making gains in socio-economic attainment has a high correlation with smoothing an immigrant's integration into American culture and communities.

The comment period will remain open until July 11, 2014.  After that the DHS must review the comments and issue a final published law.

NOTE – the Bloomberg article is reproduced with permission from Daily Labor Report, 87 DLRA-3 (May 6, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)  <http://www.bna.com>

Bloomberg DHS Regs Story.pdf

JUNE 2014 VISA BULLETIN

The Department of State has just released the June 2014 Visa Bulletin.  This is the ninth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 continued to move steadily.  It is now into 2008.

The Chinese EB-2 and EB-3 are no longer inverted.  The Chinese EB-3 moved all the way back to October 2006.  It remains to be seen if the Chinese EB-2 and EB-3 swap places again in the next US fiscal year, which starts October 1, 2014.

The All Other EB-3 moved back as well.  It is now April 2011.  Our sense is that it will not progress until the next US fiscal year.

The Indian numbers basically remained the same.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	22MAY09	15NOV04	C	C
3rd	01APR11	01OCT06	15OCT03	01APR11	01JAN08
Other Workers	01APR11	01JAN03	15OCT03	01APR11	01JAN08

MANY H-4s NOW ALLOWED TO GET EADs

As expected the Department of Homeland Security has just issued a press release announcing that some H-4 nonimmigrants will be allowed to apply for EAD (Employment Authorization Documents) cards.  H-4 nonimmigrants are spouses of H-1B workers.  The EAD cards will allow H-4 spouses to work in any occupation.  This is a major change that has been considered for several years.

In order to qualify for the EAD card the principal H-1B worker must have either:

1. An approved I-140; or

2. A PERM Application (Labor Certification) that has been pending for at least one year.

This proposed rule will help many H-4 spouses who are prohibited from working because of retrogression.  At a press conference this morning, the DHS indicated that 97,000 H-4 spouses would be immediately eligible for the EAD.  It is an enormous step in the right direction and DHS and Deputy Secretary Alejandro Mayorkas deserves praise for their effort to produce a meaningful, well-thought out rule aimed at treating fairly the people who are playing by the rules. 

UPDATE (MAY 9 2014): It looks like the rule will be published on May 12 and the comment period will end 60 days later. 

FOREIGN NATIONAL’S TRAVEL HISTORY NOW ON-LINE

The U.S. Customs and Border Protection (CBP) discontinued paper I-94 cards in May 2013, replacing them with an electronic I-94 record, which is accessible through www.cbp.gov/I94. 

Now the CBP is rolling out the latest enhancement of that service: a five year historic record off a foreign national’s arrival and departure history.  Foreign nationals will need their name, date of birth, and passport information, in order to access their travel history.  The database is solely for entries and exits from the U.S.  It does not identify changes of status, extensions of stay, or adjustments of status granted by U.S. Citizenship and Immigration Services.  

VISA BULLETIN PREDICTIONS FOR SUMMER 2014

Every few months Charlie Oppenheim of the Department of State discusses predictions for future Visa Bulletins.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

Here are his projections for a recent conversation with AILA:

•           India EB-2: before the end of the summer India EB-2 will be into 2008.
•            Worldwide EB-2: no major changes.
•           Worldwide EB-3, including Philippines: as happens every summer, EB-3 may retrogress and even become unavailable until the new fiscal year that starts October 1, 2014.
•           China EB-3: demand has been steady since the China EB-2 and China EB-3 dates flip-flopped.  China EB-3 may retrogress his summer.
•            National Visa Center:  the NVC is now sending out Fee Bills 8-12 months in advance of the expected priority date becoming current.  Previously, the NVC had been sending out the Fee Bills 12-18 months in advance.