THE VISA BULLETIN IN THE MONTHS' AHEAD

The American Immigration Lawyers Association’s Business Committee Chairs met with the Department of State’s Charles Oppenheim last week. Based on the meeting, AILA predicts that EB-2 numbers will jump another six months when the March 2012 Visa Bulletin is published in mid-February. This jump of priority dates comes after several months of rapid progression of priority dates in the EB-2 category. The EB-2 progression will stop at that point until the summer. There was no prediction about the progression of EB-3 petitions.

Charles Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month. Both Mr. Oppenheim and the USCIS are surprised at how low the demand has been for employment-based green cards in 2011-12. Mr. Oppenheim says that about 10-15% of all employment-based green cards are Consular Processed and 85-90% are Adjustment of Status petitions.

There has been anecdotal evidence that there are many EB-3 to EB-2 upgrades, although the true impact on EB-3 priority dates is still unknown. The slow advancement of priority dates in early Fiscal Year 2011 was due in part by these upgrades. Mr. Oppenheim’s office does not clear an upgraded EB-3 number until the upgraded EB-2 petition is approved.

ONLY FOUR NPTE EXAMS IN 2013

To little fanfare, the Federation of State Boards of Physical Therapy has announced that there will only be four National Physical Therapy Exam testing dates offered in 2013. The exam dates for 2013 are expected to be released in mid-2012.

The FSBPT is offering five exams in 2012 and offered three exams in the second-half of 2011. FSBPT notes that:

We understand and appreciate that more test dates – not fewer – is what our stakeholders would like. However, in order to maintain the validity of the exam and maintain the current score reporting process, we are able to offer only four dates in 2013.

FSBPT began fixed date testing on July 1, 2011, as a result of concerns over the security of the exam. The NPTE is only offered in the United States and is the only one of the three major healthcare licensing exams to have adopted a fixed date testing schedule. The NCLEX-RN (Registered Nurse) and the OTR (Occupational Therapy) exams are offered around the world and on most business days. Both the NCLEX-RN and the OTR exams have not had notable security breaches, unlike the NPTE.

FOREIGN TRAINED RNs NUMBERS CONTINUE TO PLUMMET

During most of the 2000s, internationally trained nurses made up about 10-15% of all new RNs that came on-line in the US. These numbers disappeared with the onset of retrogression in January 2008. The retrogression, now in its fourth year, has eviscerated the number of foreign-trained RNs.

In 2008, about 51,373 internationally educated RNs passed the NCLEX exam. In 2011, that number has been more than halved to 23,266, a drop of about 28,000. Fortunately for US healthcare users, US-educated RNs have filled half of the gap; about 14,000 more US-educated nurses now take the NCLEX-RN then did in 2008.

While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. By the end of the decade the US could be short 250,000 to 1 million nurses, depending on whose estimates you read.

NCLEX-RN Test Takers
	US Educated	Int'l Educated	Total
2008	158,385	51,373	209,758
2009	161,362	40,622	201,984
2010	167,597	30,178	197,775
2011	172,041	23,266	195,307

Source: NCSBN Fact Sheets

FEBRUARY 2012 VISA BULLETIN

The Department of State has just released the February 2012 Visa Bulletin. The February Visa Bulletin is the fifth Visa Bulletin of US Fiscal Year 2012.

This Visa Bulletin again showed much improvement in the EB-2 categories. The China and India EB-2 numbers jumped another 12 months, and now stand at January 2010. In the last two months these EB-2 numbers have improved almost two years. The February Visa Bulletin notes that:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

The EB-3 categories had much more modest gains -- a few weeks in all instances.

February 2012 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01JAN10	01JAN10	Current
EB-3	22FEB06	01DEC04	15AUG02	22FEB06

CGFNS BEGINS EXPEDITED REVIEW

On Monday CGFNS will begin to offer an Expedited Review Service for their Credentials Evaluation Service (CES). This is an optional service for faster review. CGFNS will charge $150 for Expedited CES, unless the Application has previously been filed and is pending with CGFNS. Applicants with an existing CES can upgrade their CES to Expedited Review for $250.

The Expedited Service will result in a complete report within ten business days, provided that all requisite documents are at CGFNS. If all required documents are not with CGFNS, CGFNS will notify the applicant of any missing or insufficient documents. Once this deficiency is cured, CGFNS will issue the report.

WHAT CONGRESS MIGHT DO IN 2012

There are several business immigration legislative initiatives that were proposed in Congress in late 2011. Whether some of these will be signed into law is an open question.

The US Senate presently is the tougher of the two chambers of the US Congress. The Senate is split half: there are 51 Democrats and 47 Republicans (and two Independents, who tend to vote with the Democrats). Because of the Senate’s procedural machinations, any single Senator can delay any bill by placing a “hold” on a bill.

The US House of Representatives is overwhelmingly Republican, 242-192. This allows bills to move much quicker through the House, provided that the Republican leadership is in favor of the bill.

For several years gridlock in the “do-nothing” Congresses has forestalled any meaningful immigration legislation. There are three bills that had action taking on them in December. While the odds are against these bills passing are long, they represent the best chance of positive immigration legislation in the first quarter of 2012. They also represent the best chance for positive immigration legislation in several years.

HR 3012 – The Fairness For High-Skilled Immigrants Act. This bill seeks to eliminate the individual per-country numerical quotas that exist in the allocation of employment-based green cards. The per-country restrictions would be eliminated over three years. The House passed the bill in November. The Senate seemed poised to pass the bill, until Sen. Grassley (R-IA) placed a hold on the bill in December. Sen. Grassley seeks to include several other amendments to the bill, all of which seem aimed at creating a more restrictive business immigration environment. Sen. Grassley’s history suggests that the chances of this bill passing are low unless he can be appeased.

S. 2005 - Irish Recognition and Encouragement Act of 2011. The IRE Act authorizes the Secretary of State to issue up to 10,500 E-3 visas per year to Irish nationals. In the last few years several “trade” visa programs have exempted special classes of nonimmigrants from the usual visa quotas and process. Since the middle part of the last decade, trade visa programs have been carved out for nationals of Chile, Singapore, and Australia. The IRE Act is being pushed by Sen. Brown (R-MA). Massachusetts traditionally is a strong-hold for pro-Irish immigration measures. Sen. Brown’s predecessor, the late Sen. Ted Kennedy (D-MA), had long championed Irish visa programs. With Sen. Brown facing a tough campaign, he may use this bill to curry favor with his deep cadre of pro-Irish constituents.

S. 1986 - STEM Visa Act of 2011 (S. 1986). This bill was introduced just before Congress began its latest holiday. A version of the STEM Act repeatedly has been introduced in several prior Congresses. While the STEM Act would be good for America and great for American business, the STEM Act has failed to gain traction in the past and is not expected to do so in this Congress.

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JANUARY 2012 VISA BULLETIN

The Department of State has just released the January 2012 Visa Bulletin. The January Visa Bulletin is the fourth Visa Bulletin of US Fiscal Year 2012.

This Visa Bulletin showed much improvement in the EB-2 categories. The China and India EB-2 numbers jumped 10 months to January 2009. The EB-3 categories had much more modest gains -- a few weeks in all instances.

Jan 2012 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01JAN09	01JAN09	Current
EB-3	01FEB06	15OCT04	08AUG02	01FEB06

LATEST ON HR 3012

Sen. Chuck Grassley (R-IA) has temporarily blocked the Senate from passing HR 3012, the Fairness for High-Skilled Immigrants Act. The companion Senate bill was introduced by Sen. Mike Lee (R-UT). It is labeled S. 1857.

HR 3012/S 1857 seeks to eliminate per-country caps on employment-sponsored green cards. Sen. Grassley has held the bill because "it does nothing to better protect Americans."

Sen. Grassley has long sought major changes in the H-1B rules. He has not specified what changes he is seeking in HR 3012/S 1857. It does not seem likely that the Senator would allow any amendment to increase visa numbers or provide for a faster-track Schedule A visa process.

HOUSE PASSES HR 3012

On Tuesday, November 29, the House of Representatives passed HR. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15. The Senate must now consider the bill. If the Senate passes HR 3012, President Obama is expected to sign the HR 3012 into law.

The measure, if passed into law, would eliminate the per country numerical limitation for employment-based immigrants. The Immigration and Nationality Act generally provides that the total number of employment-based immigrant visas made available to natives of any foreign country in a year cannot exceed 7% of the total number of such visas made available in that year. The bill eliminates this per country percentage cap in a phased in process between 2012 and 2015.

SEATING OPTIONS FOR THE NPTE

The next National Physical Therapy Exam is scheduled for December 5, 2011. The NPTE’s website regularly publishes the lists of test sites and the number of seats that are available for each site. The list breaks down by individual Prometric facility. Prometric is the independent test administrator for the NPTE. The NPTE is written and graded by the Federation of State Boards of Physical Therapy (FSBPT).

H-1B CAP REACHED

The USCIS announced that the Fiscal Year 2012 H-1B cap was reached on November 22, 2011. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that arrive after November 22, 2011.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B must wait to file their Petition until April 1, 2012, for an employment start date of October 1, 2012. "Cap-subject" H-1B petitions include:

* 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

* Prospective international employees currently living abroad

H-1 CAP TO BE REACHED BEFORE THE END OF NOVEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible.  MU now believes that the H-1B cap may be reached before the end of November.

The latest USCIS update is that 56,300 of the 65,000 regular H-1B numbers have been used as of November 14, 2011, leaving about 8,000 H-1B visas.  The demand for H-1B numbers has surged in the last few weeks.

Employees that may need an H-1B visa include:

•  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
• Prospective international employees currently living abroad

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap.  These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

The USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”.  The H-1B Masters Cap has been reached.  H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

DECEMBER 2011 VISA BULLETIN

The Department of State has just released the December 2011 Visa Bulletin. The December Visa Bulletin is the third Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about three months.

Dec 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15MAR08	15MAR08	Current
EB-3	15JAN06	08SEPT04	01AUG02	15JAN06

EB2 FOR PHYSICAL THERAPISTS

For many non-Indian and non-Chinese natives, the EB-2 Permanent Residency visa (green card) provides a fast and cost-effective alternative to the H-1B process. The EB-2 also allows for a much faster green card process when compared to the EB-3 Permanent Residency process.

The EB-2 is available when the employer requires a Masters Degree for entry into the position and the Physical Therapist holds a Masters Degree. USCIS regulation says that a Masters Degree is equivalent to a Bachelors Degree and five years of progressive experience.

MU Law has successfully applied for the EB-2 for many Physical Therapists who have five years of progressive experience in occupation after the attainment of their Bachelors degree.

The USCIS has been inconsistent in their adjudication of Physical Therapist EB-2 Petitions when the Therapist holds an FCCPT “first professional degree” evaluation. The inconsistency largely is due to some degree being titled, Bachelor Degree, when in fact, these degrees are equivalent ot a US Masters Degree.

Legally speaking, the USCIS ought to be approving these Petitions since the independent FCCPT evaluations equate the Physical Therapists foreign degrees to a US Masters Degree. FCCPT is a premier credentialing evaluator for Physical Therapists. In May 2010, its FCCPT Type I Certification was re-certified by the USCIS until 2015. CGFNS offers a similar certification called the Visa Screen. CGFNS is also a premier credentialing evaluator for Physical Therapists.

MU Law successfully has filed many EB-2 Petitions for many Employers and Therapists. These Petitions are not simple filings, but require a substantive legal analysis of the employer’s hiring practices and the Therapists’ educational background. If you are interested in having an MU attorney review your matter for applicability as an EB-2 Permanent Residency green card, please contact Chris Musillo or Cindy Unkenholt.

H-1B CAP TO BE REACHED IN DECEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible. The H-1B cap likely will be reached in December 2011.

The latest USCIS update is that 49,200 of the 65,000 regular H-1B numbers have been used as of October 28, 2011, leaving 15,800 H-1B visas. Based on prior year’s usage, MU expects that the demand will rise again in November. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

Employees that may need an H-1B visa include:

• 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
• Prospective international employees currently living abroad

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”. The H-1B Masters Cap has been reached. H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

UPDATE! USCIS I-797 APPROVAL NOTICES

Last week, MU Law notified its clients of a USCIS policy change, in which the USCIS was sending I-797 Approval Notices to Petitioners and Beneficiaries, instead of sending these documents to the Petitioners and Beneficiaries' designated representatives and lawyers.

In a quick break from this policy, USCIS Director Mayorkas announced that the USCIS will revert back to the long-standing policy of sending I-797 Approval Notices to the Petitioners and Beneficiaries' representatives and lawyers. MU Law applauds this reversion of policy. The USCIS is often lambasted for ill-thought out policy. It is therefore only right to highlight when they make the right decision.

NEW H-1B WHEN A CHANGE IN GEOGRAPHICAL LOCATION?

Staffing companies provide value in industries where there is a shortage of qualified labor because the ability for flexible labor is great. Similarly, high rates of immigration are common in occupations where there are shortages of labor.

It is therefore understandable that many companies that employ large numbers of immigrants are staffing companies. The H-1B visa is the most common visa vehicle for these workers. Healthcare staffing companies often employ Physical Therapists and Occupational Therapists via the H-1B visa.

These companies often then have to move these workers to new geographical locations as dictated by client’s needs. While a new or amended H-1B visa is required when there is a material change in an employee’s job duties, a new or amended H-1B visa traditionally is unnecessary when an H-1B worker moves to a new geographical location.

As Musillo Unkenholt explained in an April 2010 letter to a public inquiry request by the USCIS,

In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

In AILA’s notes from an October 5 meeting with the USCIS, the USCIS implied that it may soon require a new or amended H-1B to be filed when there is a change in the worker's geographical location. The USCIS full comments were:

USCIS RESPONSE: This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review. We will take AILA’s views into consideration when finalizing the policy on what circumstances would require an amended petition to be filed with USCIS.

There is no rationale for a change in policy on this issue other than to create additional administrative burdens on H-1B Petitioners. Musillo Unkenholt hopes that the USCIS instead focuses its efforts on those who abuse the immigration system.

H-1B CAP COUNT: 41,000

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 41,000 H-1B cap-subject Petitions have been receipted by USCIS as of October 7, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

NOVEMBER 2011 VISA BULLETIN

The Department of State has just released the November 2011 Visa Bulletin. The November Visa Bulletin is the second Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about four months.

The Visa Bulletin contained a discussion about future EB-2 movement:

The November Employment-based Second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

Nov 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01NOV07	01NOV07	Current
EB-3	22DEC05	22AUG04	22JUL02	22DEC05