OTED REMINDER: DOCUMENTATION DUE BY JULY 31

The National Board for Certification in Occupational Therapy recently issued a reminder about Occupational Therapy Eligibility Determination (OTED) standards.  The OTED processes applications from non-US trained Occupational Therapists.  The criteria for submitting an OTED application is that the foreign-trained OT must have an educational background that is comparable to a US-entry Occupational Therapist.  This entry standard has been a master’s degree since January 1, 2013.

OTED now reminds applicants that after July 31, 2013 all applications will be closed unless the application includes evidence that a US-equivalent Master’s Degree has been obtained.  Documentary evidence includes:

- Official school transcript

- Official Course Syllabi with descriptions

- Verification of Academic Credential Form

- Program Director Form

- Verification of OT License, Registration, Certification or Other Form of Official Government Recognition Request form

TRIAL STARTS IN ALLEGED NURSE INSTRUCTOR VISA SCHEME

A Colorado trial started this week in which US Attorneys allege that US citizen Kizzy Kalu lured foreign-educated Nurse Instructors to the US to teach at Adam University, a fictional college.  The US Attorney's claim that the Instructors paid Kalu's company, Foreign Heath Care Professionals Group,  and his business partner $6,500 expecting that they would have H-1B visa approval and Instructor positions that paid them $72,000 per year.  When they arrived in the US, FHCPG put them to work at low paying conventional nursing jobs and had to return part of their paycheck to Kalu or risk having their visas revoked.  

Kalu and his partner, Philip Langerham, were first indicted in March 2012.  Mr. Langerham has since reached a plea deal with the US Attorneys office and appears ready to testify against his ex-partner.

Kalu's attorney claims that the proposed jobs were always expected to be supervisory nursing jobs at long-term care facilities.   Supervisory nursing jobs and Nurse Instructor jobs are often permissible under the H-1B visa program.  FHCPG apparently hired a well-regarded immigration attorney to help with the H-1B processing.  According to the Denver Post, Kalu's defense is that the nurses never intended to adhere to their employment contracts and began fabricating stories in order to maintain valid immigration status.

JULY 2013 VISA BULLETIN

The Department of State has just released the July 2013 Visa Bulletin.  This is the first of the three fiscal-year fourth quarter Visa Bulletins.  The US Fiscal Year ends on September 30, 2013.

This Visa Bulletin continue to show steady progress in the EB-3 numbers for All Other and China.  We are now into 2009 for both categories.  

India's EB-3 remained in January 2003. India EB-2 remained frozen at September 2004.  The Philippines EB-3 modestly improved to October 2006.

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

July 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08AUG08	01SEP04	Current
EB-3	01JAN09	01JAN09	22JAN03	01OCT06

CIR MOVES FORWARD IN SENATE, LATERALLY IN HOUSE

The next steps on Comprehensive Immigration Reform are taking shape.  Whether it can be accomplished by the end of the summer is still an open question.  If CIR fails it will be because it is enormously difficult to get 435 House Representatives and 100 Senators to agree anything.

Senate Majority Leader Harry Reid (D- NV) says that a full Senate vote on CIR (S. 744) is expected to come before the July 4th Congressional recess.

Senator Harry Reid @SenatorReid The immigration debate on the Senate floor starts tomorrow. My goal is finish the process by July 4. youtube.com/watch?v=apMtiW… 02:14 PM - 06 Jun 13

S. 744 will need 60 votes to survive a filibuster.  The odds are better than even that S. 744's proponents can get the 60 votes.  S. 744 stalwart Sen. Rubio seems to be wavering but this may be politics on his part.   While sixty votes would be a victory, sixty-five or seventy would be better.  It would signal broad bipartisan support for S. 744 specifically and CIR generally. 

Once S. 744 is passed all eyes will be on the House.  The House had its own Gang of Eight crafting its own CIR bill.   This Gang of Eight has been downsized to a Magnificent Seven, with Rep. Raul Labrador (R-ID) leaving the posse.  While Rep. Labrador's abdication was not welcome news, the fact that the rest of the Republicans have decided to stay on the job implies that there is still a desire to get a House bill completed this summer. 

Before we can get to the House though it will remain to be seen just how many votes S. 744 can obtain in the Senate.  We should know the answer to this -- and to be better able to handicap the viability of CIR -- by the July 4 Congressional recess. 

FRAUDULENT DOCUMENTS FROM INDIRA GANDHI NATIONAL OPEN UNIVERSITY

The Foreign Credentialing Commission on Physical Therapy is tasked with reviewing the credibility of foreign educated Physical Therapist's transcripts.  A recent News Item on their webpage says that they will require additional documentation before they will approve any transcript from Indira Gandhi National Open University. 

FCCPT has apparently had a recent submission of fraudulent documents claiming schoolwork from this University.  It is unclear if this was an isolated incident or a repeated problem.  Graduates of Indira Gandhi National Open University should expect a delay in the processing of their FCCPT applications.

ELECTRONIC I-94 CARDS

In May, U.S. Customs and Border Protection (CBP) began implementing its plan to automate the Form I-94, Arrival/Departure Record.  CBP is substituting paper Forms I-94 with a passport stamp and an electronic record for some nonimmigrants arriving at air and sea ports.    Nonimmigrants arriving via a land border will continue to receive a paper Form I-94 from CBP.

The electronic record of admission may be accessed and printed at www.cbp.gov/I94.  Nonimmigrants are encouraged to print out their I-94 arrival record immediately after entry in order to insure that the information has been correctly inputted into the CBP electronic system.  If the information is incorrect, please contact us immediately.

NEXT STEPS ON CIR

Last week the Senate Judiciary Committee passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, or what is generally called Comprehensive Immigration Reform (CIR).  While this was a significant step, we are still a long way from actually having CIR as law.

S.744 does many things.  This post will not talk discuss the specifics of the law but will focus on the next procedural steps that must happen if CIR is to become law.

From here, the bill moves to the full Senate.  The conventional wisdom is that in June the full Senate will pass the bill.   After the Senate acts is where it gets interesting.

What the House will do is a wide-open question.   Some think that if the Senate passes the bill with a healthy majority, then the House will fall in line.  While the House will have its own bill, it may look a lot like S.744, if S.744 passes the full Senate with wide support.  For example, a 70/30 pass rate means that a lot of Republicans and Democrats have voted for it, which means strong bipartisan support. 

If this happens we would expect to see House action before their recess in early August.  Pres. Obama will certainly sign the bill; there is zero chance that he will veto it.  So the next key date is mid/late June to see what the full Senate will do.

On the other hand if the Senate cannot get to the “magic 70 number” then the House may craft a dramatically different bill, and predictions become muddy.  If the House starts from scratch with its own bill this could drag on for a while. 

At this point the odds are 50/50 that we get CIR in 2013, and the odds improved significantly with the Senate Judiciary Committee’s actions.

NEW USCIS IMMIGRANT FEE MUST BE PAID ON-LINE

On February 1, 2013, the USCIS instituted an additional $165 Immigrant Fee for immigrants who received their visas at U.S. Embassies and Consulates abroad.  The fee allows USCIS to recover the cost of processing the immigrant visa package and other information as well as producing and delivering the permanent resident card after immigrant visa holders are admitted to the United States.  This fee is in addition to the Department of State NVC immigrant visa fee.

Immigrants who receive their visas at must pay the fee online.   USCIS has moved the online payment of the USCIS Immigrant Fee to its Electronic Immigration System.  Customers must now pay the $165 USCIS Immigrant Fee using USCIS ELIS after they receive their immigrant visa package from the Department of State and before they depart for the United States. 

CAP-SUBJECT H-1Bs HAVE ALL BEEN RECEIPTED

The USCIS has confirmed through AILA that all 2013 H-1B cap-subject cases have been receipted in this past week.  This is a little quicker than we had expected.  If you have not received an H-1B receipt notice the chances are that your case did not win the H-1B lottery.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject is returning the petition along with the USCIS filing fees.

F-1 students who did not win the lottery must exit the US at the conclusion of their F-1/OPT period.

Many H-1B petitions are not subject to the H-1B cap, including:

* H-1B extension petitions

* H-1B transfer petitions

* Certain H-1B petitioners for University employers

* Certain H-1B petitions for Non-Profit Research organizations

JUNE 2013 VISA BULLETIN

The Department of State has just released the June 2013 Visa Bulletin.  

This Visa Bulletin showed incredible progress in the EB-3 numbers for All Other and China, each of which moved ahead by more than one year.  China's EB-2 numbers also improved, moving forward by two months.

India's EB-3 finally progressed into 2003, but it looking like a ten year Indian EB-3 retrogression shortly will be with us unless there is Comprehensive Immigration Reform.  India EB-2 remained frozen.

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

June 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15JUL08	01SEP04	Current
EB-3	01SEP08	01SEP08	08JAN03	22SEP06

TRACKING THE SENATE JUDICIARY COMMITTEE

The Senate Judiciary Committee has begun the arduous amendment process. More than 300 amendments have been filed by the Senate Judiciary Committee membership, many by Republicans looking to stop CIR.  The SJC is composed of far less than half of the Senate membership as a whole.  The SJC deliberations are expected to last for about two weeks.  After which, the SJC will take a vote.  

Although some members of the SJC are trying to torpedo the CIR bill, it is still expected to pass the SJC.  From there the Senate as a whole will act on the bill, where it is also expected to pass.  It remains to be seen by how much the bill passes the full Senate.   The greater the margin of passage, the better the likelihood of House action.  A lot hinges on the next several weeks.

MU Law will be in Washington DC next week meeting with Senate and House members' staffs educating them further on employment-based immigration issues, especially for the healthcare community.  We received a lot of positive feedback from our last trip in March.

WHAT CIR WILL HAVE IF WE HAVE CIR

Comprehensive Immigration Reform is heating up.  The Gang of Eight published a bill in April that is the first significant step in immigration legislation. MU Law has been to Washington to discuss the bill with Congressional staff. 

The bill is 850+ pages and will be amended many times before it ever come up for a vote.  While the final version is still a work in progress and it is still an open question as to whether CIR will ever pass, several things are becoming clear.  If CIR becomes law it will have these characteristics.

Greater H-1B visa numbers.  Current law allows 65,000 new “regular” H-1B visa approvals every fiscal year and an additional 20,000 for graduates of American Master’s degree programs.  American businesses have regularly asked Congress to raise this H-1B quota.  Congress is hearing the call.  Most potential legislation calls for increased H-1B numbers.

Increased H-1B Enforcement.  The trade-off for the greater H-1B numbers is greater enforcement regulation.  All versions of CIR step up funding for H-1B enforcement.

Special Third Party Placement Rules for H-1B Employers.  Since January 2012, USCIS has held staffing companies to a higher level of scrutiny.  Congress is now going further.  Placing employees at third-party worksites is outright prohibited for some employers and highly regulated in others.  

Abundant Green Card Numbers.  By increasing green card numbers, Congress hopes to incentive future employers and workers to adhere to immigration regulation.  For the industry this should mean faster green cards and less worrying about quotas.

E-Verify is here to stay.  E-verify is a federal program whereby voluntary employers can check a prospective employee’s work authorization.  Government contractors and some states have made E-verify mandatory.  Congress appears ready to require E-verify for all employers, likely phasing it in over a few years.

Shifting from Family Based Visa Numbers to Merit Based Immigrants.  One part of the CIR plan is that Congress appears to have settled on a merit-based green card.  A merit-based system would allow the Department of Homeland Security to weigh a number of factors, such as education, job prospects, US ties, and English fluency to prioritize an applicant’s visa.  The merit based system will come at the expense of the family categories and will eliminate the visa lottery program.

US EMBASSY - MANILA TEMPORARY CLOSED

The US Embassy - Manila Immigrant Visa Unit will be temporarily closed on Monday, May 13, 2013.  Applicants with appointments scheduled for May 13 will be contacted to reschedule their appointments.  Alternatively, applicants with appointments scheduled for May 13 may contact the Embassy’s call center at (632) 982-5555 or (632) 902-8930 from 8:00 a.m. to 8:00 p.m. (Monday through Friday) to reschedule their appointments.

Also, the American Citizens Services unit in Manila will be closed on Wednesday, May 8, 2013 for a regular training day.  Regular services will resume on May 9.

ELECTRONIC I-94 CARDS

USCIS and Customs and Border Security (CBP) have rolled out an automated I-94 card system effective this week.  Foreign entrants into the US via air and sea ports will no longer be given paper I-94 cards at the inspection desk.  Foreign nationals will be electronically registered by the Port of Entry officer.   This is a good step toward an all-electronic entry and exit system.

CBP has set up a dedicated webpage through which foreign nationals can review the electronic record of their entry and print out a paper copy of the I-94.  The paper copy is often needed by other federal and state agencies for immigration benefits and US drivers licenses.  One would hope that these agencies will be able to tap into the CBP system rather than relying on paper copies.

NURSES, COMPUTERS AND FUTURE JOBS

Slate’s Matt Yglesias is one of the internet’s best writers on economics.  His April 22, 2013 post explains why nursing should experience increasing demand in the near and long term, unlike many other “middle skilled” occupations.  His take-away:

An aging country is going to demand more health care services. A country that's politically committed to meeting the health care needs of the poor is going to demand more health care services. A wealthier society is going to demand more health care services.

His fellow Slate writer, Anna Reisman, who is also a physician, wrote an April 18 article in which she outlines the case for greater use of nurse practitioners and liberalized state licensing rules.  She cites an Institute of Medicine study that shows similar patient outcomes regardless of whether the patient is diagnosed by a Nurse Practitioner or Primary Care Physician. 

Yglesias takes it a step further.  He cites a recent study that concludes that computer models do a better job at predicting lung cancer patients’ treatment outcomes than doctors. 

Nurses are going to be more in demand.  They are going to need to be fully versed in technology and they are going to be even more responsible for patient outcomes.  Yglesias says it best: “with digital medical technology improving, there's going to be a broader and broader range of health care services that a well-trained nurse can provide without needing the many extra years of expensive medical education required to churn out a doctor.”

USCIS MAY TAKE UNTIL JUNE TO NOTIFY H-1B CAP WINNERS AND LOSERS

The USCIS has begun processing the 124,000 timely-field H-1B cap-subject petitions.   Because the H-1B category was oversubscribed, the USCIS will be returning approximately 15,000-20,000 H-1B petitions, after accounting for improperly filed and/or denied H-1B petitions. 

Between April 1-5 the USCIS registered each timely-field H-1B case into their system.  Each timely-filed H-1B cap-subject petition was given a filing number.  Once all 124,000 petitions were registered into the system, the USCIS randomly chose 85,000 winning petitions.  This “H-1B lottery” was held about 10 days ago.

The USCIS now has started processing winning premium processing petitions.  Contrary to incorrect internet rumors, this does not mean that premium processing petitions were given any benefit in the lottery.  The USCIS has confirmed on multiple occasions that non-premium petitions had the exact same chance of winning the H-1B lottery.

Processing of winning petitions consists of confirming proper filing fee payment and data entry of H-1B petitions onto USCIS internal computer system.  Once the H-1B petition is processed, Premium Processing adjudicators begin to assess the approvability of the petition. 

MU Law has had several H-1B premium processing petitions already approved.  We have also received a few premium processing RFEs.

Data entry of non-premium processing petitions will not be complete until at least May and perhaps June.  Rejection notices for petitions not selected in the lottery will be sent out after the data entry for winning petitions has been completed.  AILA points out that when the cap was reached on the first day in 2008, USCIS did not complete data entry and issue receipt notices until late in May 2008.

SENATE CIR OUTLINE RELEASED

An Outline of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which is the Senate’s "Gang of Eight" bill, has been released.  MU Law has posted a copy of the 17-page Outline on our Doc Stoc page.

It is important to recognize that this is just an Outline.  Several of the Outline's bullet points are inconsistent and outright contradictory with other bullet points.  It is also important to note that the bill is far from becoming law.  The Senate will have hearings to amend the bill throughout April and May. 

If the bill passes the Senate Judiciary Committee and the Senate as a whole, a separate Comprehensive Immigration Reform bill will be announced in the House of Representatives.  The House bill will also have to pass that chamber and then be remedied with the Senate bill.  Only then will it be presented to President Obama for signature.  The key take-away is that this bill is still many steps from becoming law. 

Keeping in mind that the final CIR may look different than this one, this MU Law Visa Advisor only highlights several key items that will be of interest to our clients and friends.  Also, although the 17-page Oultine includes sections on Border Protection and Undocumented Worker Legalization we have not summarized these areas of the law in this MU Law Visa Advisor since they are of lesser interest to our clients and friends.  

Here is the brief MU Law Summary of the Senate's CIR bill:

EMPLOYMENT-BASED GREEN CARDS
-          The Senate CIR bill calls for an immediate elimination of retrogression for currently-pending green card applications.  If this provision is true as listed in the Summary hundreds of thousands of long-delayed EB-2 and EB-3 applications would be immediately eligible for Adjustment of Status, Immigrant Visa appointments, and Green card issuance.  It is unclear how the USCIS and State Department would handle this immense overload of applications.

-          Going forward employment-based green card numbers would dramatically increase.  Theoretically this could mean that future retrogression is small.

EMPLOYMENT VERIFICATION
-          All employers will be required to use E-verify over a five-year phase in period, which will include enhanced photographic measures.

H-1B / L-1 VISAS
-          The H-1B visa cap will increase to 110,000, and can increase to 180,000 over seven years.

-          Spouses of H-1B visa holders will gain work eligibility.

-          H-1B prevailing wage rules may be changing, mandating higher wages for H-1B workers.  It is somewhat unclear in the Outline to what extent the prevailing wage rules will change.

-          Employers with more than 50 employees and who have 50% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $10,000 in H-1B / L-1 filing fees.

-          Employers with more than 50 employees and who have 30% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $5,000 in H-1B / L-1 filing fees.

-          By 2016 any employer who has more than 50% of its workforce on H-1B / L-1 status will be ineligible to petition for H-1B and/or L-1 visas.

-          All employers who wish to hire an H-1B must advertise the position on a government database for 30 days.

MAY 2013 VISA BULLETIN

While the Senate is readying a first draft Comprehensive Immigration bill and rallies around the country are hoping to influence a new immigration system, the old immigration system continues.  The Department of State has just released the May 2013 Visa Bulletin.  This Visa Bulletin shows more of the same: minor progress from last month's Visa Bulletin, with one notable positive exception.

The big news was a five month improvement in All Other EB-3 to December 1, 2007.  The China EB-3 number also moved to December 1, 2007.  All Other, and Philippine EB-2 dates remained Current.  The Chinese EB-2 visa date moved almost forward by six weeks.

On the other hand, the Philippine EB-3 date was disappointing, moving just one week, to September 15, 2006.  Also disappointing was India EB-2, which remained at September 1, 2004 for the seventh month.  

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

May 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15MAY08	01SEP04	Current
EB-3	01DEC07	01DEC07	22DEC02	15SEP06

H-1B CAP LOTTERY ANNOUNCED

The USCIS has reached the statutory H-1B cap of 65,000 for fiscal year 2014 (H-1B Regular Cap). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (H-1B Masters Cap).  This is the first year since FY 2008 that the cap has been reached so quickly.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period. 

H-1B CAP HAS BEEN REACHED

On Friday the USCIS announced that the H-1B cap has been reached.  The USCIS will hold a lottery and return any petitions for Beneficiaries who do not win the lottery.  F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period.

H-1B cap-subject 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