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.