Thursday, December 20, 2012


A 2010 lawsuit has finished its trial stage, resulting in a $4.5 million verdict in favor of 350 Philippine teachers who had been recruited to work on H-1B visas in Louisiana.  The jury found that the twin recruiting firms – Universal Placement International, based in Los Angeles, and its sister organization, Manila-based PARS International Placement Agency – violated a number of laws.  The teachers’ case was supported by the Southern Poverty Law Center, the American Federation of Teachers, and the mega-law firm Covington & Burling.  The case is captioned, Mairi Nunag Tanedo et al v. East Baton Rouge Parish School Board et al.  The case is a strong blow against unscrupulous recruiters.

But what did the Court really find with this decision?  And how can H-1B recruiters and employers who want to stay within the law learn from this decision.

We start with an article from last year that explains the allegations. 

The applicants were interviewed and were asked to pay $5,000 upon submission of their documents.  Petitions for working visas (H1B) for the teachers were processed through the recruitment agency. When these were approved and the applicants concluded their interview with the US Embassy, the teachers were asked to pay an additional $10,000. Failure to pay the additional sum, they were told, would result in forfeiture of the first $5,000 and the teachers would not be permitted to travel to the US. 

The facts were concisely summed up in a May 2011 preliminary Order issued by US Judge Andrew J. Guilford in this case,

Enticed by promises of lucrative and exciting employment through a work program, a foreign worker speaks with recruiters about working in the United States. The recruiters explain the terms and costs of the work program, and the worker gets a large loan and voluntarily uses it to join the program.

After the worker joins the program and begins employment, the worker becomes unhappy. But if the worker quits, awaiting is a trip home with a massive amount of debt that will be impossible to repay. Working in the program is the only way to repay the loan. Is this forced labor? Fraud? No. It is a bargained-for exchange. Despite the worker's unhappiness, the terms and costs of the program were known, and the worker voluntarily obtained the loan to join the program. The worker's eventual discontent does not transform the valid contract with the recruiters into something illegal.

But what if after the worker made the payment, the recruiters alter the program terms and costs? The recruiters demand an additional payment of double what the worker has already paid. They threaten to kick the worker out of the program if additional payments aren't made, and they keep the initial payment even if the worker decides to leave to program. The worker is therefore faced with a choice of forfeiting the first payment, knowing that repayment of the debt may be impossible, or paying the additional money the recruiters now demand. Knowing that working in this program is the only way to repay the initial debt, the worker pays the additional sum and continues working in the program.

Once the worker begins employment, complaints about the payments and working conditions are met with continued threats of termination and deportation. Knowing that this job is the only way to repay the debt, the worker remains silent and continues working. Is this forced labor? Fraud?

These are the questions now before this Court.

The SLPC’s December 18, 2012 press release implies that the court’s decision was based on the fact that the teachers were “lured to teach in Louisiana public schools and forced into exploitive contracts.”  This press release seems to back away from the SLPC’s initial claims of “human trafficking, racketeering and fraud.” 

And so the conclusion appears to be that the Court found the initial contracts acceptable, but did not like the bait-and-switch component of the future forced employment contracts.  It is unclear to me at this time, whether the claims of racketeering and human trafficking were part of the court’s decision or not. 

But that analysis may have to wait.  This Blog will be silent until year’s end as we enjoy the Holidays with our friends and families.  Musillo Unkenholt wishes all of our readers a wonderful Holiday season!

Wednesday, December 12, 2012


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

Overall, the news again was disappointing.  India EB-2 remained at September 1, 2004 for the third month.  Our projection that the India EB-2 number will move forward is looking wrong, although the basis for the projection is the same: earlier big movements tend to lead to later big movements.  

The Philippine EB-3 date was equally disappointing, remaining at August 15, 2006.

The good news category included news that the All Other and Philippine EB-2 date remained Current, and that All Other EB-3 jumped ahead two months.  As MU Law mentioned last month, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

January 2013 Visa Bulletin
All Other CountriesChina IndiaPhilippines
EB-2Current 08DEC0701SEP04Current

Tuesday, December 11, 2012


An Executive Order Review Search reveals that the USCIS may be finalizing a rule that will allow work authorization for H-4 spouses if they have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313 (American Competitiveness in the Twenty-First Century Act of 2000 or AC21).
This proposal was first prominently suggested in May 2012 in the U.S. Department of Homeland Security Retrospective Review of Existing Regulations – Progress Report.  Most people, MU Law included, did not think that action would come quickly, if ever, in spite of an official White House Response to a petition for such authorization earlier this year.  Nonetheless, this authorization is long overdue and it is encouraging that President Obama’s administration is following through on its promises to produce favorable uncontroversial immigration legislation and regulation.

Thursday, December 6, 2012


As the calendar is turning to 2013, MU Law reminds readers to schedule their 2013 Physical Therapy NPTE exams.  The FBSPT has produced a chart that lists the relevant test date deadlines.  We reproduce it here for readers.

Keep in mind that the FSBPT uses a fixed-date testing scheme.  The FSBPT approach is different than other healthcare occupation's examination processes, which allows for rolling testing dates. FSBPT believes that their fixed-date testing system provides the most secure exam for their industry.

Be sure to register well in advance in order to insure that your seat is reserved.

Test Date
Registration Payment Deadline
Jurisdiction Approval Deadline
Seats are reserved for PT candidates until:
Scores Reported to Jurisdictions
January 29, 2013
December 22, 2012
December 31, 2012
January 8, 2013
February 5, 2013
April 30, 2013
March 23, 2013
April 1, 2013
April 9, 2013
May 7, 2013
July 24, 2013
June 17, 2013
June 24, 2013
July 3, 2013
July 31, 2013
October 30, 2013
September 23, 2013
September 30, 2013
October 9, 2013
November 6, 2013

Monday, December 3, 2012


The National Board of Certification for Occupational Therapists (NBCOT) recently confirmed that the Test for English as a Foreign Language (TOEFL) will no longer be required to complete the Occupational Therapists Eligibility Determination (OTED) process.  In other words, an English fluency exam is not required prior to an applicant’s test date.

Applicants should keep in mind that if they want to work in the United States, they will require a Visa Credential Verification Certificate (VCVC) or a Visa Screen at the time of their visa interview.  The visa interview is usually the last step in the immigration process.  The VCVC can be applied for through the NBCOT and the Visa Screen can be applied for through CGFNS.  Federal law requires that before a VCVC or Visa Screen is issued, an English fluency exam must be obtained.  For the VCVC, the minimum passing score for the TOEFL is defined as 89 for the Internet-Based Test, and 26 for the Speaking portion of the test.

Monday, November 26, 2012


The US Embassy-India has begun a program where H-1B renewal applicants in India no longer need to attend a visa interview for their H-1B visa extension.  This waiver of the interview process is a welcome relief for Indian nationals who increasingly have had difficulty extending US H-1B visas.

The new program allows repeat travelers who are extending their H-1Bs to avoid the visa interview if the prior visa is in the same classification with the same petitioner and is still valid or expired within the last 12 months.

Applicants for this visa interview waiver programs may apply on the US Embassy – New Delhi website.

Applicants must meet these criteria:

If you can answer “yes” to the following questions, you qualify for the Interview Waiver Program “Dropbox” at one of the 11 service centers.

·         I received my visa after November 1, 2008
·         I have a previous U.S. visa in the same class as the visa for which I wish to renew
·         My previous visa was issued in India
·         My most recent visa (in the same visa class for which I am applying) was issued on or after my 14th birthday
·         I have no refusals for a visa in any category after my most recent visa issuance
·         If I am applying for a B1/B2, C1D, F, or J visa, my prior visa in the same classification is still valid or expired within the last 48 months
·         If I am applying for an H or L (individual) visa, my prior visa in the same classification with the same petitioner is still valid or expired within the last 12 months. Note: L (Blanket) visa does not qualify.
·         My prior visa is not annotated “Clearance Received”
·         My most recent visa (in the same visa class for which I am applying) was not lost or stolen

The webpage contains this Note: Using the interview waiver or drop box service does not guarantee visa issuance. In some cases, you may be required to appear for a visa interview at the U.S. Embassy/Consulate, for example, if you submit an incomplete and/or inaccurate application. Submit your application well in advance of your planned travel to allow for the possibility that a visa interview will be necessary.

Other visa categories may also apply for the waiver of an interview:

·         Business/Tourism (B1 and/or B2);
·         Dependent (J2, H4, L2)
·         Transit (C) and/or Crew Member (D) - including C1/D.
·         Children applying before their 7th birthday traveling on any visa class
·         Applicants applying on or after their 80th birthday traveling on any visa class
·         Children applying before their 14th birthday traveling on any visa class
·         Students returning to attend the same school and same program
·         Temporary workers on Individual L1-A or Individual L1-B visas

Wednesday, November 14, 2012


On the heels of Congressional leaders announcing that they are considering Comprehensive Immigration Reform that could increase the number of employment-based visas, the National Foundation for American Policy (NFAP) has just released a 27 page detailed Report, "U.S. Government , Heal Thyself : Immigration Restrictions and America’s Growing Healthcare Needs".  The NFAP Report's recommendations include:

1)   Expand the number of employment-based green cards so the wait times for skilled immigrants, including nurses, physicians, and physical/occupational therapists, can be measured in weeks or  months,  rather than in years or decades.

2)   Establish a temporary visa that facilitates the entry of foreign nurses. Current temporary visas do not work for the vast majority of foreign nurses and their potential employers.

3)   To aid patients in under-served areas and enable more U.S.-trained doctors to pursue specialized medical fields expand the Conrad 30 program to include many more physicians per state and in the country as a whole. Also, we should consider policies to overcome the limitations on medical residency slots in the U.S. by developing guidelines to allow foreign-trained doctors to practice in the United States if they can demonstrate  a  high  level  of  expertise.  Congress  logically  should  include  physicians  and  medical researchers  in  biology  and  chemistry  in  the  definition  of  Science  Technology   Engineering   and Mathematics (STEM) for exemption from employment-based green card quotas in future legislation.

4)   Streamline  state  licensing  and  other  procedures  for  foreign  medical  personnel,  including  physical therapists and occupational therapists, to help with the nation’s long-term health needs.

The report makes a compelling argument.  It explains how staffing shortages lead to dire consequences for US patients and how these staffing shortages are not being served by US workers.  These staffing shortages will remain for the foreseeable future, given greater demand for smaller nurse-patient ratios, a paucity of instructors, the graying of the existing workforce, and other institutional factors.

The Report details the present visa options and the failure of these options to satisfy healthcare staffing needs.  The failures of the H-1B, TN, and current green card programs to adequately address these staffing shortages are fully explained in the NFAP Report. (One quibble: the Report lists the H-1C visa as "reauthorized", which it was; it subsequently expired in 2009, thus taking yet another option off of the table.)

The Report is chock full of data and should be required reading for anyone in the industry and ought to be on the desk of any Congressional staff who are looking to establish policy initiatives aimed at a significant gap in the current US immigration policy. 

Monday, November 12, 2012


With the election cycle over for at least a little while, it is now time for each party to see what worked and what didn't work in the just-passed election cycle.  And it's pretty clear that the Democrats immigration-friendly policy was a winner and the anti-immigration rhetoric from the Republicans was not.

As we asked last week: Now What?  The answer is that the Republicans have done an immediate 180 degree turn.  Already Sen. Graham (R-SC) has announced that he will work with Sen. Schumer (D-NY) to revisit their shelved 2010 Comprehensive Immigration Reform (CIR) bill, which was torpedoed when the Democrats moved ahead with their healthcare initiatives, driving the Republicans into their do-nothing mode.  

Now?  H-1Bs, Green cards, STEM occupations all may be in play.

Back in 2010, the bill was called CIR ASAP (Comprehensive Immigration Reform for America's Sceurity and Prosperity). The CIR ASAP bill had these characteristics:

- Recapture of all Immigrant Visas (Family & Employment) from 1992-2008.
- STEM occupations exempt from the Immigrant Visa numbers.
- Immediate relatives exempt from Immigrant Visas quotas (this could be enormous and would be responsible for slicing the immigrant visa retrogression backlogs);
- Increases the per country visa cap, thus ameliorating the Indian, Chinese, and Mexican retrogressions;
- Spouses and Children of LPRs are Immediate Relatives and therefore IV quota-free;
- Employers have affirmative obligation to report recruiters working on their behalf and can be held liable for the crimes of the recruiter;
- Before an employer can hire an H-1B worker, the employer must meet strict requirements for the recruitment of American workers. This would also likely help Healthcare Petitions since the Healthcare staffing shortages are well-documented.

Thursday, November 8, 2012


The Department of State has just released the December 2012 Visa Bulletin.  

Overall, the news was disappointing.  India EB-2 remained at September 1, 2004.  MU Law expects the India EB-2 number to move forward, although we are surprised that the progression did not happen with this Visa Bulletin.  The Philippine EB-3 date was equally disappointing, progressing by only one week.

On the bright side, the All Other and Philippine EB-2 date remained Current.  We expect this number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

December 2012 Visa Bulletin
All Other CountriesChina IndiaPhilippines
EB-2Current 22OCT0701SEP04Current

Wednesday, November 7, 2012


President Obama has been re-elected for a second four year term.  The Senate and House of Representatives largely have been kept in tact  As usual, immigration reform is expected to be hotly debated.  Republicans may be willing to cede from their traditional anti-immigration positions, in light of post-election analysis saying that their position is really hurting them with the Latino vote.  It was President George W. Bush's relative success with the immigrant community that propelled him to his two victories.

The obvious place to start would be with employment-based immigration, specifically with immigration for workers in occupational zones that are unfilled by American labor.  Professional nurses and Physical Therapists have been listed on the Department of Labor's Schedule A since 1980.  Schedule A is limited to those occupations that the Department has "determined there are not sufficient United States workers who are able, willing, qualified, and available for the occupations."  

In spite of this obvious shortage, it still takes Physical Therapists several years to obtain US green cards.  For nurses, it's much, much worse.  A fully qualified nurse who has passed an English fluency examination and the relevant state's licensing examination must wait approximately seven years to obtain the green card.  If the nurse is Indian, the wait is ten years. This is ridiculous.

The President ought to be able to get the votes to end these delays, which hurt US patients and make intending immigrants question America's desire for their badly needed talent.

Thursday, November 1, 2012


As we have blogged about in the past, the USCIS' inconsistently adjudicates EB-2 petitions for Physical Therapists.   The law is straightforward. If the position requires an Advanced Degree, then EB-2 Petition should be approved. An Advanced Degree is a US Master’s Degree, the foreign equivalent of a US Master Degree, or a Bachelors Degree and five years of progressive work experience.

If the FCCPT or another credible educational evaluator finds that the Beneficiary’s foreign education is equal to a US Masters Degree, then the EB-2 Petition should be approved, since all US employers effectively require an Advanced degree as their minimum requirement for entry into the petition.

The USCIS recently addressed the applicability of FCCPT educational evaluations:

Response: USCIS considers FCCPT evaluations. However, these evaluations are not binding on USCIS. USCIS will continue adjudicating these filings on a case by case basis. Whether the physical therapists are indeed eligible for EB-2 classification depends on the individual facts of each case. 

MU Law has been working with AILA on this issue for about one year, helping AILA frame the issue for the USCIS.  While the specific language of this Reply is less than ideal, we’re optimistic that the USCIS is beginning to understand the value and credibility of an FCCPT evaluation.  We expect to see more favorable evaluations for properly prepared I-140 EB2 Petitions in the future.

Tuesday, October 30, 2012


MU hopes that its clients and friends enjoy a Happy Halloween from "Boo-Sillo" Unkenholt.

*Note - this is what our lobby actually looks like right now!

Thursday, October 25, 2012


Reader of this Blog may want to participate in two upcoming Conferences. 

The NBCOT will be holding their 18th Annual Conference in Alexandria, Virginia on October 26-27.  The Annual Conference will focus on Contemporary Issues impacting Occupational State Therapy Regulation.  This year’s conference features speakers covering a variety of topics, including: NBCOT Certification Examinations –A Defensible Measure of OT Knowledge, and a discussion on Social Media.

The AAIHR’s Annual Meeting is designed for individuals that recruit foreign trained RNs, PTs, OTs, SLPs, and other healthcare professionals and are interested in the regulation of nursing and allied health professions, and other information relating to the challenges and opportunities in the industry.   The Annual Meeting will include speakers such as Franklin A. Shaffer, EdD, RN, FAAN; current CEO of CGFNS International and a representative from the Philippine Embassy in the United States.  The AAIHR Annual Meeting is set for Friday November 2, 2012 in Arlington, Virginia.  

Monday, October 22, 2012


The FSBPT, which had announced an NPTE rate increase would take place on January 1, 2013, has delayed the implementation of the rate increase until January 1, 2014.   The NPTE fee was to be increased to $400.  It will now stay at $370 for one more year.

The FSBPT gave several reasons for delaying the fee increase.  Most interesting was their projection that NPTE filings would decrease in the upcoming years.  FSBPT predicts that the increase in NPTE volume will shrink to 3% per year.  FSBPT previously expected a 5% annual increase in NPTE volume.

Friday, October 12, 2012


The Department of State has just released the November 2012 Visa Bulletin. The news was a mixed bag.  For EB2s (except India and China) visa numbers are current, meaning that there is immediate visa eligibility for these applicants   

The India EB-2 number has remained back to September 2004. MU still believes that this is a very conservative visa number and we would expect the number to move forward in the next few months. As a point of reference, the November 2010 Visa Bulletin was May 2006 and there simply cannot be that many EB-2 immigrant visas pending from 2004-2006, in spite of a likely uptick in EB-2 conversions from EB-3 priority dates. Applicants with India EB-2 priority dates from 2004-2006 have been able to apply for their Adjustments of Status without much impediment for two years. China EB-2 moved ahead by two months.

The EB-3 numbers continue their very slow progressions. These numbers are only noteworthy by their consistency. MU Law expects this trend to continue into the future.

November 2012 Visa Bulletin
All Other CountriesChina IndiaPhilippines
EB-2Current 01SEP0701SEP04Current

Monday, October 8, 2012


The US Department of Labor reported on Friday that the unemployment rate fell to 7.8%, which is the lowest rate since the recession started.  This rate is still historically quite high.  The unemployment rate never exceeded 8 % between 1984-2009.

Many question why the US should allow H-1B visas if many US workers are out of work.  The answer is that H-1B visa usage is a microeconomic phenomenon, not a macroeconomic one.

H-1B visas are used by industries in short supply.  These industries include IT, science, engineering, and healthcare.  Not coincidentally, these industries are expected to have continued demand for future workers. 

The Brookings Institute says that the occupations with the largest supply vacancies are:
1. Computer Occupations
2. Health Diagnosing and Treating Practitioners
3. Other Management Occupations
4. Financial Specialists
5. Business Operations Specialists
6. Sales Representatives, Services
7. Engineers
8. Information and Record Clerks
9. Advertising, Marketing, Promotions, Public Relations, and Sales Managers
10. Supervisors of Sales Workers

US high school students ought to be preparing for these jobs if they want to be adequately employed when they reach adulthood.  Until then, American companies will search around the world for talented workers to fill these supply shortages. 

One bogeyman in the H-1B debate has always been that H-1B workers are only used to tamp down US wages and supplant American jobs.  As we have argued many times in the past, there is little evidence that this is actually the case for at least two reasons.

For one, if the H-1B program was being used to reduce wages and displace American workers, we would see H-1B workers spread across many industries, instead of concentrated in just a few industries.  But we don't see that.  We see H-1B workers concentrated in just a few industries   

Also, we would see more consistent annual H-1B usage by US employers.  The incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.  However, when the economy was in its weakest state, there were many fewer H-1B visa petitions filed by US businesses.

Critics of the H-1B system should acknowledge that the H-1B system does what was designed to do.  It provides needed workers in industries where workers are needed.  It is not a macroeconomic policy, but a microeconomic one.  The national unemployment rate has little relevance.

Wednesday, October 3, 2012


Tonight is the first of the three Presidential debates between incumbent President Obama and challenger Mitt Romney.  The conventional wisdom is that Mr. Romney has to score some points in the debate in order to close Mr. Obama’s increasing lead in the polls.

The debate will take place in Colorado, a state that has seen very high levels of immigration in recent years.  Mitt Romney has endorsed President Obama’s Deferred Action for Childhood Arrivals (DACA).  DACA allows foreign nationals who entered the US prior to their 16th birthday to obtain working and traveling authorization, provided that they do not have a felony conviction (or three misdemeanors) and are high school graduates or armed forces veteran.  President Obama recently said that the failure to pass positive immigration legislation may have been the biggest failing of his first term in office.

Readers of this blog will be keen to see if the Presidential candidates discuss employment-based immigration.  House Republicans and Democrats have offered competing versions of a similar STEM visa bill.  The STEM bill allows foreign-national graduates to have their green cards on a fast-track.

There is a deal to be made between Democrats and Republicans during the upcoming lame duck session.  The technology industry continues to put pressure on Congress to pass the bill, which is generally popular with the public.  If one of the candidates can show leadership on this issue and raise it during the debate, it may foreshadow a serious and credible candidate on immigration.

Monday, October 1, 2012


MU's Chris Musillo has been selected as the Discussion Leader on Thursday's AILA Teleconference, Third Party-Site Placement: Hs and Ls.  AILA members can register on AILA’s website.  The Teleconference will focus on the legal issues incumbent in staffing company businesses: Healthcare staffing, IT staffing, and Hospitalist organizations.

Date: Thursday, October 4, 2012 @ 2:00 pm (EDT)
Title: Third Party-Site Placement: Hs and Ls

This panel will discuss how to deal with situations where an H-1B or L-1 sponsor places a beneficiary at a third party location. The panel will discuss the key issues in third party site placement including how to determine if the beneficiary is actually an employee of the sponsoring entity sufficient for H-1B or L-1 approval. Panelists will also discuss practical ways to demonstrate the employer-employee relationship in the petition and recent trends by USCIS and FDNS.

What Is Third Party Site Placement? Common Definition and Every Day Examples
Is the Third Party Site Placement Scenario Contemplated/Mentioned in the H and L Regulations and How Do Hs and Ls Differ?
The 2010 Third Party Site Placement Neufeld Memorandum with 2012 Q&A Update
The Employer-Employee Relationship: How Does the Petitioner Establish Control? Evidence, Support Letter, Any Magic Language?
The LCA, Confirming Third Party Placement, and FDNS Treatment: Preparing for Site Visits!

Christopher T. Musillo (dl), Cincinnati, OH
Elahe Najfabadi, Los Angeles, CA
Nataliya Rymer, Philadelphia, PA

Tuesday, September 25, 2012


In discussions with clients and friends of MU Law, we have begun to hear that there are nursing shortages in certain disciplines and in certain geographical pockets around the US.  The shortages appear to be in some specialized disciplines (as opposed to Medical-Surgery) and in rural areas in the west and south.  We have even seen reports of nursing shortages in less common areas like Massachusetts and West Virginia.

A reported in Fierce Healthcare’s newsletter, nursing represented the biggest increase (40 percent) in job openings from Q1 to Q2, 2012.  The Occupational Outlook Handbook continually reports that nursing will be among the occupations in shortest supply for this decade.  Nonetheless, foreign-trained RN numbers continue to plummet.  And it remains to be seen if anyone in Congress will show any leadership on this increasingly important issue.

Monday, September 17, 2012


The long-awaited STEM visa bill has been introduced into the House of Representatives by powerful House Judiciary Chair Rep. Lamar Smith (R-TX).  Versions of the STEM visa bill have been pushed in the past, but this one might be the best effort for enactment. 

The STEM visa bill eliminates the 55,000 visa lottery and reserves these visas for graduates of US Masters Programs in STEM occupations.  STEM occupations include Sciences, Technology, Engineering, and Mathematics.  The STEM visa bill includes language that limits its usage by some on-line only and for-profit colleges.  The bill is expected to have wide support from many Congressman and Senators.  Although President Obama has not commented on the bill, the conventional wisdom is that he would support the bill.  Challenger Mitt Romney would almost certainly support the bill.  He has advocated that he would “like to staple a green card to their diploma”.

Although allied healthcare occupations are not listed in the current version of the bill, the bill would help allied occupations by essentially increasing employment-based green card numbers by about 25%.  Also, legislators could add healthcare occupations to the bill prior to enactment or even after enactment. 

The biggest holdup to bill is the Congressional calendar.  The calendar only has a few more legislative days between now and the Presidential election on November 6, 2012.  There may be an active “lame duck” legislative period.  The lame duck period is the period between the elections and the introduction of the new Congress and President in January 2013.

UPDATE (9/18/2012 11:00 AM ET): The Hill is reporting that Sen. Schumer (D-NY) will be introducing a related, although not identical, bill in the Senate.  The report also indicates that Rep. Smith's bill may not only be introduced but passed this week.

Thursday, September 13, 2012


Nonimmigrant visa applicants in the Philippines and India have new processes in order to obtain their visas.


Since September 3, 2012, Philippine nonimmigrant visa applicants are required to present a U.S. visa application deposit slip in order to pay the machine-readable visa (MRV) application fee. Applicants should print the applicable U.S. visa application deposit slip and take it to the bank to pay the fee.

Each U.S. visa application deposit slip will contain an expiration date. Bank agents will not accept payments based on expired deposit slips.

Once the bank confirms payment, it will issue a receipt to the Applicant. This receipt cannot be replaced. Applicants will not be able to schedule an appointment without the receipt number. For complete instructions and to print the deposit slip, please visit the on-line appointment webpage.


The United States Embassy in India has announced it is implementing a new visa processing system throughout India that will further standardize procedures and will simplify fee payment and appointment scheduling through a new website at, starting on September 26, 2012. Visa applicants will be able to pay application fees via Electronic Fund Transfer (EFT) or with their mobile phones. Applicants can also pay in cash at more than 1,800 Axis bank branches.

Applicants will be able to schedule their appointments online or by phone. The new system will also allow companies and travel agents to purchase multiple fee receipts for group travel.

Under the new system, applicants will have to make two appointments. Prior to their visa interviews, applicants will have to visit an Offsite Facilitation Center (OFC) to submit their fingerprints and a photo. Located apart from the Embassy and Consulates in Delhi, Chennai, Hyderabad, Kolkata, and Mumbai, the OFCs will reduce congestion at U.S. consular facilities and speed applicant processing. Most applicants will need to visit an OFC only once.

Tuesday, September 11, 2012


The Department of State has just released the October 2012 Visa Bulletin. It is somewhat more pessimistic than was expected, although some of the retrogression may be based on the DOS’ desire to slow the applications in October 2012. As we explained in a recent post, the visa number demand is greatest every October. By slowing the application flow in October, it allows the DOS and USCIS to efficiently allocate adjudicating officers’ time.

The biggest surprise is that the India EB-2 number has retrogressed all the way back to September 2004. This is likely a very conservative visa number and we would expect the number to move forward in the next few months. As a point of reference, the November 2010 Visa Bulletin was May 2006 and there simply cannot be that many EB-2 immigrant visas pending from 2004-2006, in spite of a likely uptick in EB-2 conversions from EB-3 priority dates. Applicants with India EB-2 priority dates from 2004-2006 have been able to apply for their Adjustments of Status without much impediment for two years.

The All Other and Philippine EB-2 date (January 2012) is where we expected it to be. Our sense is that this date will also move forward in the upcoming months and may become current.

The EB-3 numbers continue their very slow progressions. These numbers are only noteworthy by their consistency. MU Law expects this trend to continue into the future.

October 2012 Visa Bulletin
All Other CountriesChina IndiaPhilippines
EB-201JAN12 15JUL0701SEP0401JAN12

Thursday, September 6, 2012


The Department of State manages the Visa Bulletin program, which is the system for the allocation of immigrant visas (green cards). The system was designed by Congress to allocate visas according to a preference system based on the applicant's country of birth and their visa category (e.g. EB-1, EB-2, EB-3). New immigrant visas are allocated at the beginning of the US fiscal year, which is October 1, 2012. The EB-2 and EB-3 visa categories are used by many healthcare occupations including: registered nurses, physical therapists, occupational therapists and speech language pathologists.

AILA has met with the Department of State to obtain the projections for the upcoming 2013 fiscal year (October 1, 2012 - September 30, 2013). Several important notes came out of the meeting.

EB-1 usage is increasing. This indirectly impacts the EB-2 and EB-3 categories because unused EB-1 numbers are allocated to EB-2 and EB-3. Increasing EB-1 usage means fewer numbers to trickle down into the lower EB categories.

EB-2 India will be 2006. This is bad news for Indian natives who had hoped to see numbers similar to the favorable numbers that were posted in early 2012. The DOS expects slow movement in this category. China EB-2 will be retrogressed, although not as badly as India.

EB-2 Worldwide (Other) should be current. Other Eb-2 countries should be current for most of the year, although it will retrogress Summer 2013, as it does in most summers. Readers should not be alarmed in the October 2012 Visa Bulletin EB-2 number is not Current; it will be current in November 2012. The DOS may do this to slow the applications in October 2012. The visa number demand is greatest every October. By slowing the application flow in October, it allows the DOS and USCIS to efficiently allocate adjudicating officers’ time.

EB-3 Numbers. EB-3 Numbers will move at about the same pace as they did in 2012.


Some of MU Law’s attorney staff will be featured lecturers in September. On September 13, 2012, MU Law's Chris Musillo will be leading the Cincinnati Bar Association’s Immigration Law Committee’s Monthly Roundtable. Chris' discussion will be centered on healthcare immigration issues. Later in the month, MU Law's Chris Musillo and Maria Schneider will be Guest Lecturers at the University of Cincinnati's College of Law. Chris and Maria's lecture to the UC law students is focused on employment-based immigration law. Their Guest Lecture is on September 25, 2012 and will be in front of UC Law’s immigration law class.

Wednesday, September 5, 2012


Because of the H-1B cap, American employers file cap-subject H-1Bs in April, for start dates in October. Generally, USCIS is able to have these H-1Bs approved by August, so that overseas H1-B approved Beneficiaries have ample to time to schedule their Consular/Embassy appointments and obtain their visas. Likewise the H-1B approvals must come by October 1, or else some students’ work authorization may lapse through no fault of their own.

AILA is reporting that the USCIS Service Center Operations has made adjudication of these cases by October 1st a top priority by adding additional resources as available. AILA’s Service Center Operations (SCOPS) liaison committee has reminded the USCIS Service Center Operations. MU Law clients and friends may want to upgrade their H-1B petitions under the premium processing program in order to be sure that the H-1B approval is timely issued.