USCIS CONFIRMS THAT H-1B PPS WILL NOT START UNTIL 4/28

U.S. Citizenship and Immigration Services (USCIS) confirmed that they will begin premium processing for H-1B petitions subject to the fiscal year 2015 cap on April 28, 2014.  USCIS first announced that they would begin premium processing for H-1B cap cases no later than April 28 in a news release on March 25.  This latest news release confirms the April 28, 2104 date.

PBS SEGMENT ON PHILIPPINE RNs

The American public newscaster, PBS, recently broadcast a piece on the migration of nurses to the US.  The segment focused on the H-1B nursing scheme that resulted in a guilty verdict in 2013.  The scheme was deplorable and the guilty verdict was warranted based on the facts of the case.

The PBS video focusses on the worst recruiters and the worst abusers of the system.  It also misses a big point – if the US visa system allowed for nurses to enter the US in a reasonable amount of time then these poachers would not be able to use scam tactics to attract desperate nurses. 

Ethical codes are one good measure.  Codes like the one used by the AAIHR insure fairness to all stakeholders in the system: nurses, recruiters, facilities, and patients.  If you are a nurse seeking to come to the US, MU Law suggests that you dutifully research the practices of your recruiter.  Make sure that they are acting in an ethical fair manner. 

The good news: many of the nurses highlighted in the segment had great results and are now fulfilling their American dream. 

USCIS RECEIVED 172,500 H-1Bs

The USCIS has just announced that it received 172,500 H-1B cap-subject petitions for this year’s H-1B cap.  The H-1B cap is 85,000, of which 20,000 are reserved for graduates of US Masters Programs.  Essentially the USCIS received 200% of the H-1B cap allocation.  Put another way, only 50% of the H-1B petitions will be accepted under the H-1B lottery.

The USCIS has inputted all 172,500 and processed the H-1B lottery for both the H-1B masters cap and the H-1B regular cap.  The USCIS has not yet announced when it will notify H-1B lottery winners and losers, although the Premium Process Service petitions should start being notified by April 28.

A higher percentage of masters cap H-1B petitions are accepted than H-1B regular cap petitions because H-1B master cap petitions that do not win the H-1B masters lottery are re-submitted into the H-1B regular cap lottery.

As soon as MU Law begins receiving confirmation of H-1B lottery winner and losers will immediate contact our clients.

MAY 2014 VISA BULLETIN

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

The Philippines EB-3 leaped ahead by almost six month.  It is now at November 2007.

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are EB-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.The Chinese EB-3 mirrors the All Other EB-3.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15APR09	15NOV04	C	C
3rd	01OCT12	01OCT12	01OCT03	01OCT12	01NOV07
Other Workers	01OCT12	01OCT12	01OCT03	01OCT12	01NOV07

CERTAIN H-4s WILL GET WORK AUTHORIZATION -- WILL IT INCLUDE H-4s OF HEALTHCARE WORKERS?

The White House yesterday has announced a series of notable improvements to the nation’s business immigration scheme.  The main one of interest to readers of this blog will be that certain H-4 visa holders will be authorized to receive employment authorization cards (EAD cards).  These EAD cards will allow these H-4 workers to work at any US employer for the duration of the validity of the card.  The period of validity is expected to mirror the H-1 primary Beneficiary’s period of validity.

However the press release limits the work authorization to “spouses of certain high-skill workers on H-1B visas.”   The press release does not define “high-skill workers” and so it is unclear if the White House means STEM workers, all H-1B workers, or some other definition.

A 2012 U.S. Department of Homeland Security - Retrospective Review of Existing Regulations – Progress Report sought to extend employment authorization to H-4 dependent spouses of H-1B nonimmigrants “who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or "stay" in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).”  MU Law first noted this Report in December 2012.

That language appeared to limit H-4 EAD authorization only to spouses of H-1Bs who were stuck in their H-1B beyond six years because of retrogression.  It remains to be seen what the White House means by this latest press release.  Nonetheless yesterday’s announcement clearly is a step in a positive direction.

H-1B CAP HAS BEEN REACHED

In a surprise to no one, USCIS announced today that it has reached the H-1B cap for both the regular and master’s cap.  The USCIS is expected to hold an H-1B lottery within the next week. 

If your H-1B petition is filed under the Premium Processing Service (PPS) you should hear of its acceptance no later than April 28.  However if your PPS petition is not accepted, it may take until mid-May before you find out that the case was not accepted under the H-1B lottery. 

Reminder:  The PPS does not give a petitioner any greater chance at winning the H-1B lottery, but it does allow for speedier notice and decision-making.

If your H-1B petition is filed under the Regular Processing path it may be until May or even June before your find out if your H-1B petition is accepted under the lottery or not.  Last year it took about 10 weeks before all H-1B petitioners were notified of their acceptance or rejection.

H-1B CAP PROJECTION AND TIMING

Projection

The H-1B cap will be reached this year on its first day of eligibility.  MU Law expects around twice as many H-1B petitions as allowed will be filed this year.  We are basing this projection on our internal H-1B cap filings, discussions with other AILA attorneys, our historical experience with H-1B numbers since the mid-1990s, and media sources.  That having been said, our projection is not a scientific one.  Indeed, no one knows exactly how many H-1Bs will be received.

The H-1B cap petitions will be divided into two categories: (1) Those who have graduated from US Master Degree programs; and (2) all other H1-B cap-subject petitions (“regular H-1B cap”).  The US Masters category has a quota of 20,000 H-1B petitions.  The regular H-1B cap has a quota of 65,000 H-1B petitions.

Timing

Since both H-1B categories will be oversubscribed, the USCIS will hold an H-1B lottery.  The H-1B lottery will be held next week.  Last year the H-1B lottery was held April 9, 2013.  Although the H-1B lottery will be held next week, the USCIS did not notify all petitioners of the outcome until June 2013.

If a petitioner wants know sooner, the H-1B may be filed via the Premium Processing Service (PPS).  The PPS does not give a petitioner any greater chance at winning lottery, but it does allow for speedier notice and decision-making.

CHILEANS MAY NOW USE VWP

Earlier this month the United States announced that Chile would join 37 other counties on the Visa Waiver list.  The original implementation date was May 1, 2014.  Vice President Joe Biden accelerated the implementation date to March 31, 2104. 

Chilean passport holders with both an approved Electronic System for Travel Authorization (ESTA) and an e-passport will be able to visit the United States without nonimmigrant visitor visas.  Chilean nationals seeking to enter the US for pleasure or business will no longer have to apply for a B1/B2 visa.

Chile is one of America’s most favored nations in US immigration.  Not only is Chile now the first Latin American country to qualify for the Visa Waiver program, it is only one of five countries who may avoid the onerous H-1B cap by filing a Trade Visa.  The other four Trade Visa Countries are: Canada (TN), Mexico (TN, Australia (E-3), and Singapore (H-1B1).

H-1B CAP PREMIUM PETITIONS START PROCESSING NO LATER THAN APRIL 28

The USCIS has issued their annual H-1B Cap press release.  The most notable news is that USCIS announced that it will start the processing of Premium Processing petitions no later than April 28, 2014.  The press release also confirms that USCIS expects to receive in excess of  the H-1B cap for both the masters and regular H-1B cap.  All told, many more than the Congressional mandated cap of 85,000 H-1B petitions will be filed by employers and receipted by USCIS.

A second notice marks the H-1B cap filing "tips".  This page advises the public on filing addresses, the order of documents, LCAs, and other key elements of a properly-filed H-1B cap-subject petition.

POEA WARNING ON BOGUS EMPLOYEE

The Philippine Overseas Employment Administration (POEA) is the Philippine government's agency tasked with protecting Philippine workers rights when they travel to work outside the Philippines.  The POEA also promotes the development of overseas workers.  Employers who seek to recruit and hire Philippine workers must obtain a POEA licence before recruiting Philippine workers.

The POEA has just issued a warning that a "Sandra M. Lim" has been representing herself as an Asst. Supervisor with the POEA.  The POEA confirms that there is no POEA official or employee with that name.

NURSE STAFFING AND MORTALITY RATES

Prof. Linda Aiken has long been a first-rate scholar on nurse staffing rates and their impact on patient safety and patient mortality.  Prof. Aiken’s list of credits is a mile long, including her Registered Nursing degree.

Once again, Prof. Aiken has found a critical link between nurse staffing and patient outcomes – this time in Europe.   From her paper in The Lancet,

An increase in a nurses' workload by one patient increased the likelihood of an inpatient dying within 30 days of admission by 7% (odds ratio 1·068, 95% CI 1·031—1·106), and every 10% increase in bachelor's degree nurses was associated with a decrease in this likelihood by 7% (0·929, 0·886—0·973). These associations imply that patients in hospitals in which 60% of nurses had bachelor's degrees and nurses cared for an average of six patients would have almost 30% lower mortality than patients in hospitals in which only 30% of nurses had bachelor's degrees and nurses cared for an average of eight patients.

The Irish have picked up on the study.  The Irish Examiner reports that the Irish Nurses and Midwives’ Organisation has asked the Irish Government to allow nurse recruitment.  The INMO cites Prof. Aiken’s research in their demand.

Will America follow suit?  Hopefully.  This research is not novel or groundbreaking.  Here is a 2010 MU Law blog post, citing yet another study by Prof. Aiken.

HISTORICAL H-1B USAGE

This year’s H-1B filing date of April 1, 2014 is coming fast.  MU Law predicts that the USCIS will see as many as twice as many H-1Bs as allowed under the H-1B quota (H-1B cap).  When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery for the first time since April 2008 (US Fiscal Year 2009).

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

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

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 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

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 3, 2007
H-1B 2008 (FY 2009)	85,000	April 7, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 5, 2013

APRIL 2014 VISA BULLETIN

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

The biggest news is that the Philippine EB-3 number has surged ahead to November 2007, a promotion of almost six months.  Other than that the Visa Bulletin dates remained approximately where they were in the April 2014 Visa Bulletin.

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are EB-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.The Chinese EB-3 mirrors the All Other EB-3.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15APR09	15NOV04	C	C
3rd	01OCT12	01OCT12	01OCT03	01OCT12	01NOV07

US ADDS CHILE TO VISA WAIVER PROGRAM

Effective May 1, 2014, the country of Chile joins 37 other countries who are part of the US' Visa Waiver program.  Chilean passport holders with both an approved Electronic System for Travel Authorization (ESTA) and an e-passport will be able to visit the United States without nonimmigrant visitor visas.  Chilean nationals will no longer have to apply for a B1/B2 visa. 

Chile is one of the most-preferred counties in US immigration.  Not only is Chile now the first Latin American country to qualify for the Visa Waiver program, it is only one of five countries who may avoid the onerous H-1B cap by filing a Trade Visa.

The five Trade Visa Countries are: Canada (TN), Mexico (TN, Australia (E-3), Singapore (H-1B1), and Chile (H-1B1).

USCIS SEEKS INFO ON H-1s FOR RNs

USCIS is asking the public for help on the issue of H-1B visas for Registered Nurses.  In particular the USCIS seeks assistance the questions at the end of this blog posting.

The USCIS will not take case-specific questions or questions on allied healthcare workers.  The question period is through March 7, 2014.

• What current trends and developments in the employment of nurses should USCIS be aware of? For example, have there been recent changes to the minimum educational, experience, training and/or other requirements for entry into certain specific nursing occupations?

• What new or updated USCIS guidance is needed for H-1B nonimmigrant and Schedule A-based immigrant visa petitions for nurses? Are there any recommended changes or updates to the November 27, 2002, USCIS Policy Memorandum on H-1B petitions for nurses, including the list of advanced practice nursing occupations?

• Are there any concerns regarding how USCIS has applied applicable law or policy in adjudicating H-1B nonimmigrant and Schedule A-based immigrant visa petitions for nurses?

• Where is the greatest need for either permanent and/or temporary nurses?

• How are hospitals and medical offices utilizing staffing companies? When a staffing company places a nurse with a hospital and/or a medical office, which entity retains control over the nurse’s employment and what are indicators for that?

MEXICAN TNs NO LONGER NEED USCIS APPROVAL

Traditionally Mexican nationals have had to get pre-clearance from the domestic USCIS prior to applying for their Mexican TN visa.  This has added cost and time to the TN process.  Recently however the US streamlined the process for Mexican TN workers.  Mexican TN workers can now directly apply at the US Embassy or Consulate for their visa. 

The Mexican national should now complete the electronic DS-160 as the first step and include a detailed US Employment Letter.  The letter should include the legal analysis confirming that the offered position is one of the NAFTA occupations listed on NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.  

MU Law advises that the Employment letter includes:

•          Job Title
•          Qualifying profession in which the applicant will be engaging (from the NAFTA Professional Job Series List)
•          Detailed description of proposed employment
•          Location of proposed employment
•          Full or Part-time (specify no. of hours per week)
•          Proposed wages per hour/week
•          Justification for employee with applicant’s profession and duration of proposed employment (explain justification)
•          Type of licensure required for proposed employment  (note: compliance enforcement is the responsibility of local or state authority and lack of licensure is not a basis for visa refusal)

Here is the list of qualified Healthcare Occupations:

Job title	Qualification
Dentist	D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental; or state/provincial license
Dietitian	Baccalaureate or Licenciatura Degree; or state/provincial license
Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States) 6	Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience
Nutritionist	Baccalaureate or Licenciatura Degree
Occupational Therapist	Baccalaureate or Licenciatura Degree; or state/provincial license
Pharmacist	Baccalaureate or Licenciatura Degree; or state/provincial license
Physician (teaching or research only)	M.D. or Doctor en Medicina; or state/provincial license
Physiotherapist/Physical Therapist	Baccalaureate or Licenciatura Degree; or state/provincial license
Psychologist	State/provincial license; or Licenciatura Degree
Recreational Therapist	Baccalaureate or Licenciatura Degree
Registered Nurse	State/provincial license; or Licenciatura Degree

THE TIME TO PREPARE YOUR H-1B IS NOW

The Fiscal Year 2015 (FY2015) H-1B cap season will begin on April 1, 2014. Last year (FY2014), the H-1B cap was reached on Day One (April 5, 2013 – the USCIS allows any H-1B petition received during the first week to be counted as a Day One filing).

From 2009-11, the H-1B cap remained opened for at least one-half the year.  For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

The FY 2015 H-1B cap demand will be high. After speaking with clients and other immigration attorney-friends, MU Law expects that the H-1B cap will move even quicker than last year.  MU Law would not be surprised if the USCIS receives twice as many H-1B cap-subject petitions as there are slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

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

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 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

2013 NCLEX EXAM WEBINAR SERIES

The 2013 NCLEX Exam Webinar Series has just been published by NCBSN.  The Series includes four modules: NCLEX Test Plan, Scope of Practice, Practice Analysis and Knowledge, Skills and Abilities, NCLEX Item Writing and Item Review, and NCLEX Sensitivity and Differential Item Functioning Review.  Each module is hyperlinked. 

The NCLEX Text Plan webinar provides an overview of the NCLEX Test Plan and the various versions of the Test Plan.  The Scope of Practice, NCLEX Practice Analysis and Knowledge, Skills and Abilities webinar describes the beginning principles in the development of the NCLEX examination.  The Item Writing and Item review Webinar overviews the item development process and the processes of item writing and item review used to ensure the validity, reliability and legal defensibility of the NCLEX exam.  The NCLEX Sensitivity and Differential Item Functioning Review describes the purpose of the processes and the procedures involved with reviewing items for DIF and Sensitivity issues.

DID YOU MOVE AGAIN!?!

Project to project, location to location, client to client.  Many of our clients regularly relocate as their jobs demand.  A reminder that whenever you change your home address, we ask that you contact our office so we can update our records.  Most immigration forms require that we list your home address and we want to make sure that we have your correct address.

In addition to updating our law firm, you’ll need to report a change of address to the USCIS within 10 days of moving.  You can update your address with the USCIS by filing a form AR-11 in hard copy or online.  Please note that if you have an application currently pending with the USCIS you must update your address online to ensure the new address is assigned to your pending application. 

You can obtain the change of address form from the attorney or paralegal handling your case or on the USCIS website.  Complete the information requested on the form, including present address, last address (most recent only), A number or registration (I-94) number, country of citizenship, date of birth, and your signature.  You do not need to include temporary addresses as long as you maintain your present address as your permanent residence and continue to receive mail there.

When filing an AR-11 either online or in hard copy you should always keep a copy of the confirmation page and/or the form itself for your records.  

MARCH 2014 VISA BULLETIN

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

The All Other Countries EB-3 date jumped about 6 months.  It has now moved an incredible 25 months in the last 90 days!   

The Philippine EB-3 numbers also progressed nicely, advancing about 3 months.  This is the  largest EB-3 jump in some time.

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are BE-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.The Chinese EB-3 mirrors the All Other EB-3.

Unfortunately India EB-2 and India EB-3 remained basically stuck at the same dates from the December 2013 Visa Bulletin.   India EB-3 moved one week.

The full chart is at the end of the post.

The Visa Bulletin also included some predictions on future progression:

EMPLOYMENT-based categories (potential monthly movement)

Employment First:  Current

Employment Second:

Worldwide:  Current

China:  Three to five weeks

India:  No forward movement

Employment Third:

Worldwide:  This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little, if any forward movement of this cut-off date is likely during the next few months. 

China:  Will remain at the worldwide date

India:  Little if any movement

Mexico:  Will remain at the worldwide date

Philippines:  Three to six weeks

March 2014 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15FEB09	15NOV04	Current
EB-3	01SEP12	01SEP12	15SEP03	01MAY07