Wednesday, August 27, 2014

BLOOMBERG NEWS ON THE NEW USCIS NURSE H-1B MEMO

Bloomberg News BNA has published a detailed analysis of several recent H-1B visa developments, including the new USCIS Nurse H-1B Memorandum.  Several attorneys, including MU Law’s Chris Musillo, were interviewed for the article.  Bloomberg has allowed MU Law to publish a copy of the article.

The article discusses increasing H-1B denial rates in spite of the fact that no new H-1B regulations have been published by USCIS in years.  One reason for the increasing denial rates have been stricter USCIS interpretations of “specialty occupation,” based on faulty reliance of the Department of Labor’s Occupational Outlook Handbook

Chris’ comments highlight the USCIS over-reliance on the Occupational Outlook Handbook when adjudicating H-1Bs for Registered Nurses.  Chris points out that while most nursing positions do not require Bachelor Degrees, some do.  Since some require a Bachelor’s degree the USCIS ought to look at an employer’s actual positional requirement instead of limiting review to the industry standards listed in the Occupational Outlook Handbook.

The Bloomberg article also discusses some recent court decisions and USCIS interpretations in light of these decisions.  

NOTE – the Bloomberg article is reproduced with permission from Daily Labor Report, Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)  <http://www.bna.com>
Bloomberg H-1B Article.pdf

Thursday, August 21, 2014

VISA PROJECTIONS FOR THE REST OF 2014

AILA has recently dialoged with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin.  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 based on his recent conversation with AILA:
  • The Philippine EB-3 date should continue to be consistent with the Worldwide (Rest of World) date for at least the next few months.  Usage of Philippine EB-1 and EB-2 numbers has decreased, leaving more numbers for Philippine EB-3. 
  • India EB-2 numbers should continue to be favorable, although large jumps forward should not be expected.  The current priority date for Indian EB-2 is September 1, 2008.  Adjustment of Status applicants should be prepared to get RFEs for medical exams if their priority date is at or near that date.  Adjustment of Status applicants should be prepared to get RFEs for medical exams if their priority date is at or near that date.  

Monday, August 18, 2014

HOW TO GET PROOF OF SOCIAL SECURITY NUMBER

One constant challenge for immigration foreign nationals is obtaining a Social Security Number once they have entered the US.  Traditionally, the Social Security Administration (SSA) made Social Security Number cards available via in-person visits immediately or almost immediately after one entered the US.  Effective August 1, 2014, however, the SSA will no longer provide Social Security Number card printouts.  It will now take up to two weeks before the SSNs are issued.

The SSA, says that the an applicant can get an instant letter online with a personal my Social Security account, or they may continue to call the SSA toll-free to request a letter by mail.  The phone number is: 1-800-772-1213 (TTY 1-800-325-0778).

Tuesday, August 12, 2014

SEPTEMBER 2014 VISA BULLETIN

The Department of State has just released the September 2014 Visa Bulletin.  This is the twelfth and final Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  The October 2014 Visa Bulletin will begin the 2015 Fiscal Year.

The Philippines EB-3 jumped again.  It is now at April 2011, which is a four year jump in the last four months.

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

The Chinese EB-3 number remained at November 2008.  

The All Other EB-3 held steady as well.  It remains at April 2011.  As we predicted last month, it did not progress.

Employment- Based
All Chargeability Areas Except Those Listed
CHINA - mainland bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC08OCT0901MAY09CC
3rd01APR1101NOV0808NOV0301APR1101APR11
Other Workers01APR1122JUL0508NOV0301APR1101APR11

Monday, August 11, 2014

TALK WITH THE NEW USCIS CHIEF

New USCIS Chief Leon Rodriguez was nominated for the job shortly after Alejandro Mayorkas accepted the positon of Deputy Secretary of the USCIS.  Director Rodriguez was sworn into the role on July 9, 2014.  Mr. Mayorkas’ tenure as Director was marked by greater engagement with the public than his predecessors.  Mr. Mayorkas regularly attended AILA functions and routinely held “town hall” style meetings with the public. 

Mr. Rodriguez seems poised to continue in this manner.  USCIS will be holding a stakeholder teleconference on Thursday, Aug. 14, from 1:30 to 2:30 p.m. ET, with USCIS Director Léon Rodríguez.

During the teleconference, Director Rodríguez will introduce himself to the USCIS stakeholder community and answer questions.  Teleconference registration details are expected shortly. 


Wednesday, August 6, 2014

WHY RECRUIT AN INTERNATIONAL HEALTHCARE PROFESSIONAL?

According to a 2012 “United States Registered Nurse Workforce Report Card and Shortage Forecast,” published in the American Journal of Medical Quality, 
“With an aging U.S. population, health care demand is growing at an unprecedented pace . . . The number of states receiving a grade of “D” or “F” for their RN shortage ratio will increase from 5 in 2009 to 30 by 2030, for a total national deficit of 918,232 RN jobs. There will be significant RN workforce shortages throughout the country in 2030; the western region will have the largest shortage ratio of 389 RN jobs per 100,000.”
The situation is no better in other allied healthcare occupations.  According to the Department of Labor’s Occupational Outlook Handbook by 2022, employment of Physical Therapists is expected to skyrocket by 36 percent.  The same is true of Occupational Therapists (29 percent), Pharmacists (14 percent), and Speech Language Pathologists (19 percent). 

Contrary to some public perception, International Healthcare Professionals are not undereducated.  Prior to issuance of a visa, the International Healthcare Professional’s education, training, past licenses, and experience must be verified and proved that it is authentic and comparable to an American healthcare worker of the same type.  International Healthcare Professionals must pass English fluency exams prior to visa issuance.

International Healthcare Professionals are also not underpaid.  Because of strict USCIS and DOL wage requirements, International Healthcare Professionals must be paid the greater of prevailing and actual wages.  International Healthcare Professionals cannot have their hours reduced.  The employer must pay the guaranteed minimum hours unless the International Healthcare Professional is unavailable for work because of non-work related factors, such as the worker’s own voluntary request for time off, or in other circumstances where the worker is unable to work.

The PERM labor certification process guarantees that there are no US workers ready, willing, and able of performing the position before any International Healthcare Professional is granted an immigrant visa.  Employers cannot make International Healthcare Professionals sign onerous contracts, including those contain penalty clauses.

Recent studies are pointing to the high quality of care provided by International Healthcare Professionals and the added value that they bring to the US healthcare industry.  Patricia Cortes, Assistant Professor, Markets, Public Policy and Law, Boston University, authored a 2012 study, Relative Quality Of Foreign Nurses In The United States

She found that,
"foreign nurses, in particular Filipinos, tend to work in more demanding settings and maintain less desirable schedules - they are more likely to work in hospitals, work full-time, and do shift work, as compared to their native counterparts.
Natives are more likely to work part-time and choose jobs with standard schedules - for example, they tend to work in physicians’ offices and schools, etc. In terms of educational background, the majority of foreign nurses have at least a bachelor’s degree, whereas a larger fraction of natives have an associate degree. A more educated nurse workforce (as measured by the share of nurses in a hospital holding a bachelor’s degree) has been associated with better patient outcomes and higher nurse productivity."

Monday, July 28, 2014

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.

Thursday, July 24, 2014

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.


Monday, July 21, 2014

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.

Thursday, July 17, 2014

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.

Monday, July 14, 2014

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.”

Thursday, July 10, 2014

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 bornINDIAMEXICOPHILIPPINES
1stCCCCC
2ndC08OCT0922JAN09CC
3rd01APR1101NOV0808NOV0301APR1101JUN10

Thursday, July 3, 2014

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.  

Tuesday, July 1, 2014

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!

Tuesday, June 24, 2014

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. 

Friday, June 13, 2014

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.

Thursday, June 12, 2014

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.

Tuesday, June 10, 2014

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

Wednesday, June 4, 2014

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”.

Wednesday, May 28, 2014

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.