MU wishes all of its clients and friends a joyous
Wednesday, December 15, 2010
The “path” is not an easy one. The House’s version of the Dream Act, which was passed earlier this month, says that applicants must spend a minimum of 11 years after becoming legalized, before they would eligible to even apply for US citizenship. In other words, if the Dream Act was passed tomorrow, the first applicants would not become US citizens until 2021. During that time period, applicants would have another batch of requirements, notably a continued “good moral character” requirement.
The Senate bill is shortly supposed to come up for vote. The Senate vote will be a close one. Outgoing Senate Majority Leader Harry Reid is said to be spending loads of time working his colleagues for votes.
While the bill doesn’t contain any provisions for healthcare workers, MU supports the bill and thinks you should too. For one, the bill appears to strike a proper balance the real-world concern of rewarding illegal entrants with the moral issues of penalizing children who have spent most of their lives in the US.
For two, it has been ages since Congress has passed a sensible immigration bill. By passing a moderate and moral bill, the US public may again see immigrants as people like them who help build a wonderful and enriched society. In turn, the healthcare community may get the immigration legislation it needs.
Friday, December 10, 2010
|January 2011 Visa Bulletin|
|All Other Countries||China||India||Mexico|
Thursday, December 9, 2010
The Philippine Overseas Employment Agency December 7, 2010 News Advisory cautions that “Medical students, graduates, and practitioners seem to be the favorite targets of employment scammers.” The POEA is the Philippine government’s regulatory agency for exiting Philippine nationals.
The News Advisory cites fraudulent employers posing to be healthcare facilities in Israel, Guam, and Switzerland, and says that the American Federal Bureau of Investigation is examining an alleged fake hospital in Guam.
Wednesday, December 1, 2010
Monday, November 22, 2010
The USCIS has struggled with this concept; they tend to be skeptical of H-1Bs for nurses. The seminal USCIS Guidance Memo was written in 2002, and has not been updated to account for the fact that many hospitals and facilities now require a Bachelors degree for all of their nurses. This is especially true in certain units and in magnet facilities.
The New York Times says that about 50% of all nurses hold a Bachelors degree. It should not come as a surprise to the USCIS that the Bachelors degree requirement increasingly is becoming the norm. The Johnson Foundation, long on the cutting edge of nursing educational studies, is cited in the Times piece. JF contends that growing that number to 80% is a realistic and worthwhile goal. As the number of Bachelor degreed nurses swells, the H-1B likely will become even a more viable immigration strategy.
Monday, November 15, 2010
|December 2010 Visa Bulletin|
|All Other Countries||China||India||Mexico|
Friday, November 12, 2010
Musillo Unkenholt noticed this proposed requirement and realized that it would have a devastating effect on H-1B employers and employees who routinely move to new locations. We sent an official comment letter to USICS in which we raised our concerns. Our letter cited five prior instances where the USCIS had said that no amended H-1B was necessary when an H-1B worker changes a geographical location.
While the final revised Form I-129 will not be officially released until November 23, 2010, it appears that the USCIS has agreed with MU’s position. The Instructions to the new Form I-129 omit any requirement that an amended H-1B Petition must be filed whenever an H-1B worker changes his geographical location.
MU commends the USCIS for an open process and a recognition of past guidance.
Thursday, November 11, 2010
Keeping our eye on the H-1B Count: According to the USCIS as of November 5, 2010, approximately 46,800 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 17,200 H-1B petitions for aliens with advanced degrees. There are 65,000 “regular” cap-subject visas and 20,000 “advanced degree” H-1Bs”.
Several healthcare occupations regularly utilize the H-1B visa including, Physical Therapists, Occupational Therapists, Speech Language Pathologists, and some Registered Nurses.
Friday, November 5, 2010
Several plaintiffs sued the Georgia Board of Physical Therapy earlier this week. The lawsuit alleges that the FSBPT’s examination policy is discriminatory and violates both federal and state law, and that this discrimination is intentional.
The lawsuit also names the FSBPT as a Defendant. Success in that lawsuit likely will compel the FSBPT to revoke their policy, although it may take many months before any resolution is reached. If you are interested in participating in the lawsuit, you are encouraged to contact the AAIHR, which is working with the lawsuit’s Plaintiffs.
Tuesday, November 2, 2010
MU VISA ADVISOR: USCIS Filing Fee Increase
Effective November 23, 2010 USCIS filing fees will increase an average of 10%. Most employment-based petitions’ fees will be raised, although the dependent Form I-539, used for H-4, L-2, and several other status petitions, will decrease by $10.
Here is the chart of the increase for the most commonly-used employment-based immigration Forms.
|New Fees Nov 23, 2010|
You can find the new fees on the USCIS’ webpage: www.uscis.gov.
Thursday, October 28, 2010
If the lawsuit in Georgia is successful, it likely will end the FSBPT’s discriminatory test administration policy. AG's offices in several states have been contacted and made aware of the AAIHR’s position. Many states have expressed off-the-record concern about the FSBPT’s actions. Because of the deliberate nature of the state’s AG’s offices, the AAIHR has chosen the litigation path.
The AAIHR is looking for additional members to support their action. If you can contribute financially, please contact AAIHR President, Patty David.
MU is an associate member of the AAIHR and has been working with the AAIHR to outline the legal strategy. We have donated both time and funding to the effort.
Thursday, October 21, 2010
Occupations and Professions Covered: RNs, OTs, PTs
Nonimmigrant Visa Options: TN, H-1B, E-3
Immigrant Visa Options: Schedule A, NIW, PERM
Issues with Visa Screen, Licensing and Timing for Filings
Options in the Absence of Visa Screen
Current Adjudication Trends
Potential Legislative Changes and Strategies
Interested AILA lawyers can participate by contacting AILA. CLE credit is available.
Tuesday, October 19, 2010
The NPTE has just announced that, contrary to prior indications, there will not be any difference in registration fees for the regular NPTE and the NPTE-i. The registration fee remains $370.00. Readers are alerted that registration for the May 2011 NPTE-i begins November 1. It is unclear what the demand for the exam will be and so qualified applicants are encouraged to register.
Thursday, October 14, 2010
The Notice Posting rule requires employers to post Notice of a potential Labor Certification Application (including Schedule A Application) at the worksite for 10 business days. The idea behind the law is to give US workers notice of the future Labor Certification, so that they can notify the DOL of any wrongdoing by the employer. Before this decision, the DOL steadfastly had held that a “business day” is a weekday (Monday through Friday) and that federal national holidays would not count as business days.
This interpretation had been particularly irritating for healthcare employers, who routinely are open for business on weekends and holidays. Immigrant visa cases would be needlessly delayed because of this silly interpretation. Occasionally, we would even hear of a case has been denied because of a posting that was done during a minor federal holiday, in spite of the fact that the employer’s hospital remained fully staffed.
The DOL’s Appeal Board, the Board of Alien Labor Certification Appeals (BALCA) thankfully has ended this nonsense. The BALCA opinion makes the vital point that “the purpose of the Notice of Filing requirement is to ensure that an employer’s employees and other interested persons are notified that it is filing an application for permanent alien labor certification.”
Going forward, employers can satisfy the 10 business day Notice posting rule by placing Notice for ten consecutive days when employees are on the worksite and able to see the Notice of Filing.
Wednesday, October 13, 2010
The present processing dates are:
EB-1 – all current
EB-2 – all current, except China (01 JUN 06) and India (08 MAY 06)
EB-3 – all 22 JAN 05, except China (22 NOV 03), India (22 JAN 02), and Mexico (01 MAY 01)
Saturday, October 9, 2010
Thursday, September 30, 2010
The NPTE-i expected to be substantially similar to the regular NPTE.
Here is the calendar of important dates for the first exam:
November 1, 2010 – Registration opens with FSBPT
November 8, 2010 – Scheduling opens with Prometric
February 22, 2011 – Registration closes
March 15, 2011 – Last date for jurisdictions to approve PT candidates for NPTE-i
April 1, 2011 – Last date for candidates to schedule with Prometric
June 8, 2011 – Scores reported to jurisdictions
It remains to be seen how the State Board of California reacts to this announcement, since the NPTE-i does not comply with the two alternatives that California outlined in its recent letter to the FSBPT.
Wednesday, September 29, 2010
1. The FSBPT is likely to formally announce its plan for the NPTE-YRLY exam. The plan will be slightly better than what they’ve published so far, but not much more. Check their blog for the formal announcement, which should come Thursday.
2. It appears that Sen. Robert Menendez will formally introduce his immigration bill to Congress. Unfortunately the bill has virtually no chance of approval anytime soon, although some are holding out hope that the bill can get traction during the lame-duck session, in November and December.
Thursday, September 23, 2010
The blog posting says that graduates from universities from the four restricted countries – India, Philippines, Pakistan, and Egypt -- have apparently shown a “propensity” toward “widespread” sharing of NPTE questions. The FSBPT has yet to define “propensity” and “widespread” in any dialogue with members of the public and state boards of Physical Therapy. Every time the FSBPT hides behind these vague words, it calls into serious question the FSBPT’s rationale and raises questions of this policy’s true intent.
The FSBPT also says that “the exam itself has not been compromised by any groups beyond the restricted groups". This of course, does not mean that it hasn't been compromised by any individuals within those groups. If compromised questions were exposed to the internet (and every indication is that they were), then individuals beyond the restricted groups have cheated. To say otherwise is disingenuous.
Moreover, since there are many more individuals in non-restricted groups, the standard of review for these groups should be greater because the damage would be far greater. For instance, if there are 1,500 restricted country test takers and 10 percent have cheated, then there are 150 restricted country cheaters.
On the other hand, if there are 15,000 non-restricted country test takers and just 1 percent has cheated, then there are 150 additional cheaters. American patients don’t care about the nationality of the cheaters; they just want all 300 cheaters to be banned from the test. The FSBPT’s program catches the first 150, but does nothing about the second 150.
Tuesday, September 21, 2010
As readers of the MU Healthcare Immigration Law Blog surely are aware, the FSBPT recently enacted a policy that bars graduates of Philippine, Egyptian, Indian, and Pakistani schools from sitting for and taking the National Physical Exam until 2011. This policy was enacted in July 12, 2010 and was formulated after analysis by the NPTE uncovered replication of actual test questions.
Ultimately the FSBPT is beholden to its stakeholders, the 50 State Boards of Physical Therapy. One such State Board, California, has just sent the FSBPT a strongly-worded letter, which sets an October 1 deadline for the FSBPT to rescind their discriminatory policy or suspend the NPTE for all test-takers. A copy of this letter is available on the MU website.
At the FSBPT's annual meeting in late October, it will more fully outline its plans for the future of the NPTE to their membership and to their stakeholders. This dialogue has already begun and may result in an amended policy in advance of the annual meeting.
The FSBPT's aims are valid. Test takers who cheat should be penalized before sitting for NPTE. In some instances, the penalty should be an outright prohibition against taking the exam.
While the FSBPT's aim is valid, their remedy is imperfect. MU lawyers Chris Musillo and Cindy Unkenholt have been working with employers, recruiters, physical therapists, immigration lawyers, and other industry leaders with the goal of remedying or modifying the policy, which we believe violates both federal and state discrimination laws.
In order to make sure that your State Board is part of this dialog, please urge your State Board to make their opinion known to the FSBPT.
Saturday, September 18, 2010
The AAIHR is holding its Annual Meeting of Members September 20, 2009 in Chicago, IL. MU's Chris Musillo and Cindy Unkenholt will be attending. The AAIHR is the industry's premier advocacy organization. Staffing companies and recruiters are invited to join via the AAIHR’s webpage.
Monday, September 13, 2010
Friday, September 10, 2010
The present processing dates are:
EB-1 – all current
EB-2 – all current, except China (22 MAY 06) and India (08 MAY 06)
EB-3 – all 08 JAN 05, except China (08 NOV 03), India (15 JAN 02), and Mexico (22 APR 01)
Wednesday, September 1, 2010
Last year, the NVC rolled out an on-line electronic payment system. MU has used this system. Our experience is that it has been a very efficient system. We like the speed and accuracy of the system.
Now the NVC is launching their on-line documentation and communication system. This program uses e-mail for communication and submission of all forms and documents to the NVC using the Portable Document Format (PDF).
Applicants who are applying for a visa at the U.S. Embassy in Ashgabat, Turkmenistan are required to process electronically.
Applicants who are applying for a visa at the U.S. Consulate General in Ciudad Juarez, Mexico in the following visa categories are required to process electronically if the first three letters of their NVC Case Number are MEP:
CR1 Conditional Spouse of United States Citizen
CR2 Conditional Child of United States Citizen
IR1 Spouse of United States Citizen
IR2 Child of United States Citizen
The option to participate is initially limited to visa applicants who are applying for a visa at the U.S. Embassies in Guangzhou, China and Montreal, Canada.
If the pilot program is successful, it is expected that the program will expand to other Consulates and Embassies.
Thursday, August 26, 2010
As has been consistently the case since the July 12 announcement, the FSBPT has been vague and inconsistent in their message. This vagueness and inconsistency calls into question the FSBPT’s ability to manage this situation.
With this latest webpage notice, the FSBPT has not explained what it looks for when it performs the psychometric review. More oddly, test takers whose scores have been invalidated may still be eligible to take the NPTE-YRLY in 2011 if they continue to meet their states’ eligibility requirements. This goes against the purpose of a review, which is presumably to protect the US public from cheating test takers.
Tuesday, August 24, 2010
We presently are limiting our scope only to those who hold US immigration status – US citizens, US Legal Permanent Residents, and valid nonimmigrant visa holders (for example H-4 or F-1). You should also have filed a state license application or have the necessary criteria to file the state license application. Again, if you fit this profile, please contact either one of us.
Monday, August 16, 2010
August 2010 is shaping up to be one of the toughest months for H-1B employers. In the last few days, we have a seen a targeted H-1B filing fee increase and the dismissal of a lawsuit that sought to overturn the Neufeld Memorandum.
Fraud Fee Increase
Late last week, the House and Senate quickly passed a massive H-1B and L-1 filing fee increase. The increase was instantly signed by the President.
Effectively immediately, H-1B and L-1 employers with more than 50 employees and who have workforces with 50% H-1B or L-1 workers, will see an increased fraud fee on new petitions. Previously, the fraud fee was $500. The new L-1 fraud fee will be $2,750 and the new H-1B fraud fee will be $2,500.
New petitions are a Beneficiary’s first L-1 or H-1B visa for a Petitioner. Typically, new Petitions are when the Beneficiary is (i) a new hire from overseas or from another nonimmigrant visa status, (ii) a student ending their OPT, or (iii) an L-1 or H-1B transfer from another L-1 or H-1B employer.
The fraud fee does not apply to employees’ L-1 or H-1B extensions since these are not "new" filings.
Neufeld Memo Lawsuit Dismissed
Earlier this summer a consortium of recruiting and staffing companies sued the USCIS, contending that the Neufeld Memorandum was contrary to law. On Friday, a federal Judge dismissed the case. The Judge's opinion says that the Neufeld Memorandum is legally permissible because the Memorandum is simply “guidance” and not binding on USCIS officers. The Plaintiffs had hoped that the federal Judge would force the USCIS to withdraw the Neufeld Memorandum.
The Neufeld Memorandum limits approvals of H-1Bs where the Beneficiary is employed at a third-party worksite. In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not “employers”.
The Memorandum derisively referred to the IT staffing model as a “job shop”. USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.
MU has seen much stricter evaluations in third-party worksite situations. Although we have not seen a material rise in denials, we have seen more RFEs issued in many H-1B cases where the employee is set to work at a third-party worksite.
Wednesday, August 11, 2010
The relevant dates are:
EB-1 – all current
EB-2 – all current, except China (08 MAR 06) and India (08 MAY 06)
EB-3 – all 15 DEC 04, except China (22 OCT 03), India (01 JAN 02), and Mexico (U)
Notes on specific countries:
China: China EB2 improved by two months since the August Visa Bulletin. China EB3 remained the same.
India: India EB2 improved by two months. There was excellent progress in India EB2, which has now jumped 15 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 however did not move from the August 2010 Visa Bulletin.
Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months. It may move to 2005 in October.
Friday, August 6, 2010
The US government can issue 65,000 cap-subject H-1Bs in any given year. An additional cap of 20,000 H-1Bs is set aside of graduates of US Masters Degrees programs (or greater programs, including Ph. Ds). For the middle part of this decade, the H-1B cap was fully subscribed on the first day that Petitions were allowed to be filed, April 1.
This year has seen the smallest number of H-1B Petitions in many years. Through the end of July, just 27,300 cap-subject H-1Bs have been approved and 11,600 cap-subject Masters H-1Bs. Last year, we saw almost twice as many H-1Bs at this time and last year’s cap-subject H-1B cap lasted until mid-December. This year’s numbers indicate that the cap-subject H-1B quota should be available until at least early 2011.
Generally speaking “new” H-1B petitions are subject to the H-1B cap. 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; and
- Prospective international employees currently living abroad.
International workers who are working here 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 “transfer” cases and may be filed at any time throughout the year.
With the economic conditions of the last two years, H-1B usage has slowed dramatically. As I have argued in the past, less H-1B usage in a shrinking economy is evidence of the lack of fraud in the H-1B program.
Tuesday, August 3, 2010
MU knows that several states have begun contacting the FSBPT to inquire if the FSBPT can speed up this process or rescind it. Some states may act in the next few days.
Once the letter is issued, it will be incumbent on the FSBPT to reconsider alternatives to their separate but equal approach or run the risk of legal action. MU is also aware of several different parties and states that are consulting with attorneys to evaluate their legal options. Legal action is the least –desired course of action. If you have been denied an opportunity to take the NPTE and you are in the US and would like to help remedy the FSBPT’s policy, please contact Cindy Unkenholt or Chris Musillo.
Tuesday, July 27, 2010
The Meeting is open to the public. If you are in or around the Sacramento area, you should attend. If you do not attend, you should send an email to the Board explaining your position.
If California is not convenient for you, perhaps New Jersey is. New Jersey’s Board of Physical Therapy meets today. If not New Jersey, then which state’s Board meeting can you attend to make your position known?
I am in the process of gathering dates for all major states. Here is the list that I have so far:
New Jersey – July 27, 2010
Arizona – July 27, 2010
California – July 28, 2010
Florida – August 5, 2010
Maryland – August 17, 2010
Illinois – October 2010
If you need model letter and/or talking points to help you frame your communications, please email me or Cindy. Also, if you know of other state’s Board meeting dates, please let us know by commenting or emailing.
Friday, July 23, 2010
Ambassador Gaa outlined efforts that the Philippine legislature has taken to ensure the integrity of standardized tests, including a fast-track bill to give broader authority to the Philippine Commission on Higher Education (CHED) to regulate review centers.
Tuesday, July 20, 2010
The posting does indicate that the FSBPT Board is directing its staff to quickly produce the FSBPT-YRLY, although it does not expect that the FSBPT-YRLY will be available earlier than the “latter part of 2011”.
Friday, July 16, 2010
As was mentioned in the Monday posting, the Federation of State Boards of Physical Therapy immediately has barred graduates of Physical Therapy university programs in the Philippines, India, Egypt and Pakistan from taking the U.S. National Physical Therapy Exam. Since our post on Monday more news has come out:
- The ban impacts anyone who has received their first professional degree from a school in the four named countries. For example, an applicant presently in a United States Masters PT program would be barred from taking the NPTE if s/he previously received a degree from a Philippine university.
- The Federation has been involved in a lawsuit in the Philippines for several years. The lawsuit is based upon past incidents of alleged cheating.
- The “cheating” appears to be allegations of tests-takers memorizing questions and then regurgitating the questions to other students.
- There does not appear to be any allegation that any universities in the four countries engaged in any malfeasance. The cheating allegations are limited to certain test takers and certain review centers.
- More countries may be added to the banned list.
While the Federation needs to preserve the integrity of the test, the Federation’s remedy is overbroad and perhaps illegal. US law does not allow discrimination on the basis of national origin. US law also assures all of due process and equal protection.
The Federation will likely argue that their approach – banning graduates of Universities in the Philippines, India, Egypt and Pakistan -- is not a ban on nationals of those countries. This appears to be a distinction without a difference. The vast majority of university graduates are nationals of the country where the university is located.
MU has been working with industry leaders to craft a reply and a response to the Federation. We ask that Therapists and employers of Therapists contact their State Board of Physical Therapy to protest the Federation’s actions. If the State Boards hear from enough people, they may prompt the Federation to change their approach. Please take a minute to contact your State Board.
Tuesday, July 13, 2010
The relevant dates are:
EB-1 – all current
EB-2 – all current, except China (01 MAR 06) and India (01 MAR 06)
EB-3 – all 01 JUN 04, except China (22 SEP 03), India (01 JAN 02), and Mexico (U)
Notes on specific countries:
China: China EB2 improved almost four months since the July Visa Bulletin. China EB3 unfortunately is now separate from the EB3 All Chargeability.
India: India has made significant progressions in the last two months. There was excellent progress in India EB2, which has now jumped 13 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 is now in 2002 for the first time.
Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months.
Monday, July 12, 2010
The new exam, which is just for the foreign-trained, is to be called the NPTE-YRLY. FSBPT expects to launch the NPTE-YRLY in the fall of 2011. The FSBPT intends to offer the NPTE-YRLY only once per year, at select test sites to be identified at a later date.
The FSBPT website says that this action is a result of “ongoing security breaches by significant numbers of graduates of physical therapy schools from certain foreign countries.” Two years ago, the FSBPT eliminated the exam from being offered overseas. Today’s action disallows the exam from being offered in the United States as well.
FSBPT’s actions are the result of “compelling” evidence that reflects “systematic and methodical sharing and distribution of recalled questions by significant numbers of graduates of programs in the affected countries, as well as several exam preparation companies specifically targeted to these graduates.” FSBPT’s website says several exam preparation companies engaged in a variety of illegal actions, including widespread sharing of hundreds of live test items.
MU will pass along more news as we receive it.
Friday, July 9, 2010
Correct application of the PW rules is critical in the H-1B process. Among other wage rules, H-1B Beneficiaries may not be paid less than the Prevailing Wage. There is no affirmative duty to raise an existing H-1B workers’ wage unless an amendment or extension to the H-1B is filed. H-1Bs are the visa of choice for many healthcare occupations including, Physicians, Physical Therapists, Occupational Therapists, Speech Language Pathologists, some nursing roles, and many other allied occupations.
For green card cases, employers should make sure that their postings and advertising processes reflect these increased wages, unless a PWD is already in place. Failure to account for the increased Prevailing Wages could prove fatal to some green card cases.
Tuesday, July 6, 2010
CGFNS is one of the major credentials evaluators for internationally-educated students. Their credentials evaluation services include registration and licensure of nurses and other health care professionals, such as Physical and Occupational Therapists.
Perhaps their best-known service is the Visa Screen, which is the CGFNS-branded Healthcare Worker Certificate. US immigration law mandates that all Applicants for nonimmigrant and immigrant visas obtain a Healthcare Worker Certificate prior to entering the US.
- Licensed practical nurse, licensed vocational nurse, or registered nurse
- Occupational therapist
- Physical therapist
- Speech language pathologist and audiologist
- Medical technologist (clinical laboratory scientist)
- Physician assistant
- Medical technician (clinical laboratory technician)
Monday, June 28, 2010
On Thursday night, we’ll be dining with a group of about fifteen immigration attorneys who spend a significant part of their practice on immigration for healthcare professionals. If you are an immigration attorney who is interested in participating in the dinner, please let Chris know.
Friday, June 25, 2010
Rumors are swirling that the President may issue a surprise Executive Order to prohibit the deportation of undocumented immigrants who have no criminal records. The rumors are not the work of partisan bloggers, but are now being picked up by credible sources, like the Miami Herald, and have been taken up in a letter by eight Republican Senators to the President.
There could be two reasons for the President to take this action. First, the President owes a debt of gratitude to the Latino community, which came out in full force for him in 2008. By legalizing millions, the President would make an enormous payment toward that debt.
Second, and critical for those who watch for Healthcare Immigration reform, the President’s action could force Republicans to the CIR negotiating table. Whether the strategy works – or whether the President is even considering the Executive Action – remains to be seen.
Tuesday, June 22, 2010
The New York Times published a fantastic editorial over the weekend, which had one fatal flaw. The editorial, Is There A Nurse in the House?, was written by Theresa Brown. Ms. Brown is an oncology nurse and is a contributor to The Times’s “Well” blog. She is also the author of “Critical Care: A New Nurse Faces Death, Life and Everything In Between.”
In the article, Ms. Brown makes the case that nurse-patient ratios, such as those in California can substantially improve patient care. Ms. Brown cites work such as a recent study led by Linda Aiken, a professor at the University of Pennsylvania School of Nursing, which found that New Jersey hospitals would have 14 percent fewer surgical deaths if they matched California’s ratio, while Pennsylvania would have 11 percent fewer. The evidence is compelling: nurses save lives.
Ms. Brown explains why nurse-staffing ratios have not caught on as much as one might think.
The real issue, of course, is cost. There’s no denying that hiring more nurses is more expensive in the short term. But having too few nurses leads to burnout, not only because it’s too much work, but because good nurses quit from the stress of knowing they can’t keep their patients safe. Mandated ratios could ultimately save money, because they would reduce both staff turnover and the number of patients who become critically ill due to insufficient care.
So what is the article's fatal flaw? It should be obvious if you regularly read the MU Healthcare Immigration Law Blog. While the nursing shortage temporarily has abated, economists predict that the US' nursing shortage is expected to grow dramatically in the next decade. Ms. Brown should have explained where the nurses are going to come from. They are not coming from US nursing schools, that’s for certain.
Thursday, June 17, 2010
If you are an AILA Attorney who is attending the conference and would like to join us, or if you are an attorney who practices in healthcare immigration and would like to join the listserv, drop me an email.
Wednesday, June 16, 2010
The only chance for positive immigration reform is through piecemeal (smaller) immigration legislation. Unfortunately the prospects for piecemeal legislation are also small, as there is little motivation in Washington DC to liberalize visa quotas given that the US’ nearly 10 percent unemployment rate. In light of these real world factors, the odds of a Schedule A visa bill in 2010 are very low.
Longer term, the odds are much better. While the nursing shortage temporarily has abated, economists predict that the US' nursing shortage is expected to grow dramatically in the next decade. This supply will be filled by internationally-trained nurses in the forthcoming years. Of course this is of little comfort to US businesses that have spent countless hours developing their international connections and international nurses who have met all licensure and Visa Screen rules, only to have the US visa quota system let them down.
The one bright spot is that we’re starting to see promotion of retrogressed dates. The DOS predicts that the Worldwide EB3 (including Philippines) should be well into 2004 by the end of the summer. If we see the same progression in FY2011 that we saw in FY2010, the Worldwide EB3 date should move through 2005 and into 2006 by the end of FY2011.
Friday, June 11, 2010
The Department of State has just released the July 2010 Visa Bulletin
The relevant dates are:
EB-1 – all current
EB-2 – all current, except China (22 NOV 05) and India (01 OCT 05)
EB-3 – all 15 AUG 03, except India (22 NOV 01) and Mexico (U)
There was excellent progress in India EB2, which jumped 8 months from 01 FEB 05. There was also a one month progression in India EB3 and a 6 week progression in all EB3 (including Philippines).
The Visa Bulletin also included a prediction section based off of expected demand:
F. VISA AVAILABILITY IN THE EMPLOYMENT-BASED CATEGORIES
Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are as follows:
EB-2: all current, China and India: March or April 2006
EB-3: Worldwide: June through September 2004, China: October through December 2003, India: February 2002, Mexico: Unavailable, Philippines: June through September 2004.
Wednesday, June 9, 2010
While the Complaint has yet to be made public, the allegations are expected to be similar to those raised in prior discussions with USCIS.
In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not “employers”.
But this is wrong. Existing law defines an “employer” as one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Plainly, staffing companies meet these characteristics. Instead of applying the law as it was written, the Neufeld Memorandum allows the USCIS to pay lip-service to these five factors.
The Memorandum has caused grave concerns for many companies that use the staffing model because of inconsistent adjudication and unlawful USCIS denials. The IT staffing industry has been particularly impacted. The Memorandum derisively referred to the IT staffing model as a “job shop”. Healthcare staffing models recently have also come under fire; USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.
Tuesday, June 8, 2010
While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. The U.S. nursing shortage is projected to grow to between 260,000 and 500,000 registered nurses by next decade. If even the smallest estimates are correct, a shortage of this magnitude would be twice as large as any nursing shortage experienced in this country since the mid-1960s.
Only 3,120 international test takers took and passed the NCLEX in the first quarter of 2010. That’s the smallest number of international test takers since at least 2006, which is the earliest data on the NCSBN website.
In 2006, about 20,907 internationally educated RNs passed the NCLEX exam for an average of 5,227 per quarter. In 2007, the volume jumped; 22,827 internationally educated nurses passed the NCLEX exam, or 5,707 per quarter. With the onset of retrogression, 2008 saw a decline; 18,905 internationally educated RNs passed the exam, or 4,726 per quarter. In 2009, the international NCLEX pass number shrunk to 13,799 per year (3,450 per quarter).
It is obvious that reasonable visa opportunities for international nurses must happen or else the US is going to find that it has a massive nursing shortage and international nurses are no longer there to fill the gap.
Wednesday, June 2, 2010
The matter began in 2006 when a group of nurses walked off their jobs at the nursing home. The nurse’s lawsuit filings have alleged unfavorable working conditions and unfair contractual clauses. Sentosa Care contends that the walk-off was illegal.
Thursday, May 27, 2010
Q: Can I nurse qualify for EB-2?
To learn the answer to this one, view past FAQs, and to get the latest quick-hit new items, become a fan of MU on Facebook. The MU Facebook page also allows Fans to comment on news stories and issues that affect US immigration.
Tuesday, May 25, 2010
Under the recommended plan, all currently-licensed RNs would be "grandparented," and would not have to obtain the Bachelors degree. Instead, all diploma and associate degreed RNs, who obtain licenses after 2012 would need to obtain a Bachelors degree within 10 years of the initiation of their license.
Nurses who failed to obtain the Bachelors degree would have their licenses put on "hold". This “hold” is similar to the action taken when a licensee fails to meet continuing education requirements in those professions that mandate continuing education as a criterion for continued registration.
Other states such as New Jersey also are considering raising their educational requirement. Advocates for the New York plan cite recent studies that show that increasing the number of baccalaureate nurses in an acute care hospital decreases the number of patient deaths. Similar legislation was introduced into the New York legislature in 2005, but was tabled because of supply concerns.
It seems inevitable that states will raise their minimum educational requirements to the level of Bachelors degree. Many countries’ minimum educational requirement is a Bachelors degree. In the US, the only state to have had a Bachelors degree minimum was North Dakota, which lowered their requirement and joined the other 49 states in the middle part of this decade.
If any state did raise their requirement to a bachelors degree, employers in that state could more liberally use the H-1B visa as a partial solution to their expected long-term nursing supply shortages. The H-1B can be used to employ some Registered Nurses.
Monday, May 17, 2010
In this Blog post, MU has done a analysis of the progress of these projections, including the just-released June 2010 Visa Bulletin. Most of the DOS' projections are proving to be accurate, with the notable exception of All Other EB3, including the Philippines.
June 2010: 01FEB05.
Predicted Sept 2010: February through early March 2005
MU Comment: The India EB2 visa number is right on the mark.
June 2010: 22NOV05.
Predicted Sept 2010: July through October 2005.
MU Comment: The China EB2 visa number has already surpassed the “best case” scenario, which is good news.
June 2010: 22OCT01.
Predicted Sept 2010: January through February 2002.
MU Comment: The India EB3 number has steadily moved since January 2010, when the India EB3 number was 22JUN01. The number looks to be on pace to meet the predicted number.
June 2010: 22JUN03.
Predicted Sept 2010: June through September 2003.
MU Comment: The China EB2 visa number is right on the mark.
All Other EB3 (incl. Philippines)
June 2010: 22 JUN 03.
Predicted Sept 2010: April through August 2005
MU Comment: This is the prediction that is the most disheartening. By now we would have expected the All Other EB3 to be well into 2004, and maybe even into 2005. The fact that the number is still in mid-2003 leads us to believe that the predicted date will not be reached.
That having been said, MU expects the All Other Visa Number to begin to move at a quicker pace. There does not appear too many cases that are still left that are this old on our roster of cases and on the roster of cases still with other attorneys.
Friday, May 14, 2010
The relevant dates are:
EB1 – all current
EB2 – all current, except China (22 NOV 05) and India (01 FEB 05)
EB3 – all 22 JUN 03, except India (22 OCT 01) and Mexico (U)
This is slow progress from the last few Visa Bulletins for All Other EB3 Applications. All Other EB3 has increased 9 months since February 2010 Visa Bulletin, when it was 22 SEP 2002. India EB3 has also improved about 4 months since February’s Visa Bulletin (22 JUN 01). Mexican EB3 remains unavailable, as it is expected to be until the end of the fiscal year in September 2010.
Wednesday, May 12, 2010
Senator Benigno “Noynoy” Aquino III is poised to become the first Philippine president elected through an automated election. President-elect Aquino is the son of former President Corazon Aquino and former Senator Benigno Aquino, Jr.
In the UK, David Cameron looks to lead the first British coalition government since World War II. The coalition agreement ends a week of discussion and negotiations between Cameron’s Conservative government and the upstart Liberal Democrats.
MU congratulates nationals of both countries on their landmark elections.
And lastly, Happy Nurses Week to all of our Nurse readers!
Monday, May 10, 2010
The Healthcare Worker Certificate is a prerequisite for all US visas, including the H-1B, TN, and the EB2 and EB3 green cards. Either the FCCPT or the CGFNS is sufficient.
Wednesday, May 5, 2010
On April 26, 2010, the California Board of Registered Nursing announced that it would no longer accept applications that do not have a Social Security Number. The California BRN reasons that since the Nursing Practice Act provides for automatic issuance of the license upon approval, the Social Security Number is a prerequisite to the filing of the application. This is problematic for overseas nurses who are ineligible for Social Security Numbers by virtue of not having US visas and work authorization.
If a nurse has passed the NCLEX and the only issue holding up the issuance of the license is the lack of a Social Security Number, the USCIS should still approve the visa petition. This process would be consistent with the USCIS’ long-standing procedure on petitions solely lacking Social Security Numbers.
For instance, a November 20, 2001 INS (predecessor to the USCIS) Memo directs USCIS officers to approve petitions when the sole missing item is the social security number. Similarly a May 20, 2009 USCIS Memo reiterates this position.
Monday, May 3, 2010
TEMPORARY OPTIONS: Occupational Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.
An Occupational Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three (43) listed occupations.
GREEN CARD OPTIONS: Occupational Therapists have not been designated as a Schedule A occupation, and therefore they are not exempt from the labor certification process (“PERM”). Therefore, the green card process for an Occupational Therapist will require PERM labor certification process followed by either Adjustment of Status or a Consular Interview.
Because the first professional degree required for licensure as an Occupational Therapist in the United States is evolving, some Occupational Therapist positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available. Generally speaking there is no backlog for EB-2 visas for most countries (excluding India and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.
CURRENT ISSUES: Filing EB-2 applications is difficult, although these can be approved in some instances where the employer requires a Bachelors degree and five years of progressive experience or the employer requires a Masters degree.
Friday, April 30, 2010
The President’s remarks ended some speculation this week that the Senate would attempt to move on immigration. Earlier, a group of Senators released a new summary Comprehensive Immigration Reform bill -- the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) bill. REPAIR was co-authored by many leading Democrats: Senators Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Dianne Feinstein (D-CA), and Robert Menendez (D-NJ). It provides a path forward for both political parties to come together and enact a lasting federal fix to the problem this year.
The actual bill language has yet to be released, although summaries have been published. At this point, it is unknown whether there is a specific liberalizing provision for Schedule A occupations – Registered Nurse and Physical Therapists. Past versions of CIR have included such a provision.
To some degree, it doesn’t matter. The President indicated that immigration is a secondary domestic priority and it is unlikely that immigration reform will be taken up in 2010.
Wednesday, April 28, 2010
TEMPORARY OPTIONS: Physical Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.
A Physical Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.
GREEN CARD OPTIONS: Because Physical Therapists have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Physical Therapist will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.
Because the first professional degree required for licensure as a Physical Therapist in the United States is evolving, some Physical Therapy positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience.
The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available.
Generally speaking there is no backlog for EB-2 visas for most countries (excluding India, Mexico, and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.
CURRENT ISSUES: Filing EB-2 applications is a fairly new phenomenon. MU has had several EB-2 applications approved for applications requiring 5 years of experience.
Monday, April 26, 2010
TEMPORARY OPTIONS: Registered Nurses are generally not eligible for H-1B status because the position generally does not require at least a Bachelor’s degree or the equivalent. However, it is possible to obtain H-1B status for a Registered Nurse if the position requires a Bachelor’s degree or the equivalent. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.
A Registered Nurse who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.
GREEN CARD OPTIONS: Because Registered Nurses have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Registered Nurse will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.
CURRENT ISSUES: Because some Employers do in fact require a Bachelors degree or the equivalent for some Registered Nurse positions, some Registered Nurses are eligible for H-1B status. The USCIS has acknowledged that certain Advanced Practice nurses as well as some specialty nurse positions (such as Critical Care and Peri-Operative) may be eligible for H-1B status.
To qualify as a specialty occupation [according to 8 CFR §214.2(h)(4)(iii)(A)], the position must meet at least one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.
The USCIS takes the position that each year of education is equivalent to three years of experience. Thus, for example, an employer that normally requires a Bachelor’s degree in Nursing or an Associate’s degree and at least six years of experience is able to attest that the position normally requires a Bachelor’s degree or the equivalent.
Wednesday, April 21, 2010
This posting will focus on some preliminary thoughts and issues that are common in most visa Petitions and Applications. The subsequent postings will highlight the specific occupations.
In all instances, there must be an employer who is the Petitioner of the visa. Generally the Beneficiary must hold the appropriate state license, although a few exceptions will be noted.
For those who are overseas, any healthcare immigration case generally starts with an immigration Petition filing in the United States. Upon approval of the Petition, the case is forwarded to the appropriate US Consulate or Embassy where the visa is issued to the beneficiary.
Upon visa issuance, the Beneficiary can enter the US. Family members generally can attend the interview and are issued derivative visas. Some derivative visas allow the derivatives work authorization and others do not.
There are two broad visa categories: nonimmigrant and immigrant visas. Nonimmigrant visas (also called NIVs or temporary visas) typically are for shorter periods of time. NIVs also tie an employer and employee. In other words if the Beneficiary wants to move to a new employer, a new NIV must be filed.
Once issued, Immigrant visas (also called IVs, green cards, or permanent residency) typically remain valid for 10 years. Immigrant visa holders also become eligible for US Citizenship, ordinarily after 5 years. IVs also may sponsor certain family members for US immigration, although the retrogression for some family categories is lengthy.
Monday, April 19, 2010
The Neufeld Memo’s main flaw is that it misreads the underlying regulation. 8 CFR 214.2(h)(4)(ii) holds that a U.S. employer is indicated by five characteristics: hire, pay, fire, supervise, or otherwise control. This regulation is controlling. Incorrectly, the Neufeld Memo implies that “right of control” is a superior characteristic encompassing the other characteristics.
In order to attempt to get its hands around the growing confusion, the USCIS held a Listening Session on March 26, 2010. MU’s attended and participated at the Session.
The USCIS’ recently released Executive Summary from that session recognizes that “if” right of control is required, then the Neufeld Memo contradicts the existing regulation. The Executive Summary goes further and agrees that “if” right of control is only one of the five elements, then an amendment is needed to the Memo.
These are not small issues. Staffing companies use the H-1B visa to supply staff to third-party worksites, mainly where well-documented US supply is short. At this point, it simply makes sense for the USCIS to suspend or withdraw the Neufeld Memorandum. At best, the Memo makes a confusing area of law incomprehensible. At worst, it takes a simple regulation and misapplies it.