DO NOT LET YOUR VISA SCREEN EXPIRE

The USCIS requires Healthcare Worker Certificates, sometimes called Visa Screens are required for foreign-born healthcare workers who will be employed in the US in the following professions:

• ·         Nurses (including LPNs, vocational nurses, and RNs);
• ·         Physical Therapists;
• ·         Occupational Therapists;
• ·         Speech-Language Pathologists and Audiologists;
• ·         Medical Technologists or Clinical Laboratory Scientists;
• ·         Medical Technicians or Clinical Laboratory Technicians; and
• ·         Physician Assistants.

A valid Visa Screen must be provided to the USCIS when the healthcare worker applies for entrance to the US, change of status, extension of status, or adjustment of status (a green card application).  In light of the USCIS’s new policies regarding the issuance of Requests for Evidence (RFE), Notice of Intent to Deny (NOID), and Notices to Appear (NTA), healthcare workers are advised to not let their Visa Screens expire. 

In the past, if an H-1B extension was filed without a valid Visa Screen, the USCIS would generally send an RFE to request it.  Under the new USCIS new policies, the lack of a valid Visa Screen would be grounds for immediate denial.  Further, with the new NTA policy, if the healthcare worker’s I-94 has expired at the time of the denial, the worker could be put into deportation proceedings immediately.

MU strongly advises healthcare workers to timely renew their Visa Screens so that they can continue to maintain their immigration status and their ability to work in the US.

H-1B CAP: PAST AND FUTURE DEMAND

This year’s H-1B filing date of April 1, 2017 is coming fast.  MU Law predicts that H-1B petitioners certainly will file in excess of 200,000 petitions during the H-1B cap window of April 1-7, 2017.  Last year’s record filing total of 240,000 may even be exceeded, although we have had reports of reduced demand this year.

When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over three times as many H-1B petitions as slots available.

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

The H-1B is usually associated with IT positons.  Most of the H-1B slots are used by IT professionals.  Many healthcare professions also qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016
H-1B 2017 (FY 2018)	85,000	April 1, 2017

IMMIGRANTS ARE “IMPERATIVE” TO CURE US HEALTHCARE STAFFING SHORTAGES

A new report by the Institute for Immigration Research declares that immigrant labor plays an “outsized and imperative role in the US healthcare system.  The Advance Healthcare Network reports that the IIR reports these figures of the population are immigrant labor:

• 28% of physicians and surgeons
• 40% of medical scientists in pharmaceutical research and development
• 50% of medical scientists in biotechnology in states with a strong biotechnology sector
• 22% of nursing, psychiatric and home health aides
• 15% of registered nurses 

This is in spite of the fact that only 13% of the US population is foreign-born.  The IIR is funded by George Mason University. 

The AHN write-up quotes Monica Gomez Isaac, executive director of George Mason’s IIR.  Ms. Isaac is very positive about the contributions that immigrants make in these fields, but she is incorrect in this quote:  

“In the instance of nurses, the lack of an international standard for qualifying registered nurses is absent. The varying degrees of training based on the standards of individual nations make it complex to recruit and fill nursing shortages.”

This is untrue for two reasons.  First, there is an international standard for qualifying nurses.  All US nurses must pass the NCLEX-RN Exam, which is offered all around the world.  Second, the training standards are not the reason for the lack of foreign-born nurses.  Between 15-20,000 internationally-trained RNs are registering to take the NCLEX-RN exam every year.  In the mid-2000s, that number was even higher. 

The problem is the immigrant visa retrogression.  A fully-qualified nurse from the Philippines takes 3-5 to get her immigrant visa.  A fully-qualified Indian nurse takes 10+ years.  If the US Congress would update the immigration laws to allow in more nurses, the bottleneck would fade.

MU LAW COMMENT TO USCIS: ALLOW H-1Bs WHEN APPLICANT HAS HEALTHCARE WORKER CERTIFICATE

The USCIS and Department of Homeland Security recently issued a lengthy proposed rule. As per US law, USCIS and DHS had to ask the public for our comments about their proposed rule.  Many lawyers and the public commented on the proposed rule.

The proposed rule covers many areas.  Musillo Unkenholt's comments focused on one area: asking DHS to allow one-year H-1B approvals in instances where the alien does not hold a license, but does hold a Healthcare Worker Certificate.

The most common Healthcare Worker Certificates are Visa Screen, FCCPT Type 1 Certificates and NBCOT Certificates.

Click here to read our complete comment

The Musillo Unkenholt comment is also on Regulations.gov.

HEALTHCARE STAFFING EXPECTED TO GROW BY 17% IN 2016

Staffing Industry Analysts US Staffing Industry Forecast predicts that US healthcare staffing will grow by 17% in 2016.  All four healthcare staffing sub-segments: -travel nursing, per diem nursing, locum tenens and allied health, showed double digit growth in 2015.

Reasons for the increase in staffing are many, including tightening US labor supply and Obamacare allowing previously uninsured patients to avail themselves of healthcare services.  More details on the report are accessible on their webpage.

MU Law has seen greatly increased demand for foreign-trained nurses, and Physical and Occupational Therapists in 2015, confirming this study's conclusions.

USCIS TO ALLOW DUAL INTENT, 240 WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

The USCIS has proposed regulations that will allow H-1B1, CW-1, and E-3 visa holders to have dual intent.  The proposed regulation will also grant extended work authorization to these visa status holders who timely file their visa status extension petitions.  These changes will bring these three categories into harmony with similar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dual intent will remove an unnecessary legal headache when these visa status holders apply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa status holders must be extremely careful when preparing their green card petitions or risk running afoul of the immigrant intent rule.  Strictly speaking, these visa status holders cannot intend to file for US Permanent Residency.

Granting extended work authorization is also a welcome for these visa status holders.  Under the current interpretation these workers were forced to stop working unless their visa status extension was approved prior to the expiration of the initial visa status.  When the new rule is finalized, those in H-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency of their visa status extension petition, even if the extension petition is not approved before the expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visa categories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status for Singaporean and Chilean nationals.  The E-3 functions similarly for Australian nationals.  These visas were approved by Congress when trade deals were struck with these three countries.  The advantage of these visas is that they are not subject to the H-1B cap.  There are quotas for these categories, although none of the quotas have veer been reached.

The CW-1 is transitional visa used for foreign nationals seeking to enter the Commonwealth of the Northern Marianas Islands.  The CW-1 visa was set to sunset in 2014, but recent legislation extends the transitional visa until December 31, 2019.

Healthcare workers who work in occupations that require at least a Bachelor degree may qualify for these visas.  Typically we see these visas used by Physical Therapists, Occupational Therapists, Doctors, Pharmacists, and Speech Language Pathologists.

HISTORICAL H-1B USAGE

This year’s H-1B filing date of April 1, 2015 is coming fast.  MU Law predicts that the USCIS may see 200,000 H-1Bs filed this year, more than double the Congressional cap of 85,000.  When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery because it received over twice as many H-1B petitions as slots available..

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

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

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 3, 2007
H-1B 2008 (FY 2009)	85,000	April 7, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 5, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015 (expected)

APRIL 2015 VISA BULLETIN

The Department of State has just released the April 2015 Visa Bulletin. This is the seventh Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014. There is once again very positive news for many immigrant visa categories.
The biggest news is the continued progression of the Philippines EB-3, the Worldwide-All Other (ROW) EB-3 date and the Mexican EB-3 date. These are all now at October 2014, which is the closest to current they have been in many years. This is yet another large progression in dates.
India EB-2 climbed forward steadily as well. It has moved to September 2007, representing a 2 and a half year increase in the last three months. 

Chinese numbers righted themselves. For two years the Chinese EB-3 has been more favorable than Chinese EB-2. With this Visa Bulletin, Chinese EB-2 is now the better date.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01APR11	01SEP07	C	C
3rd	01OCT14	01JAN11	08JAN04	01OCT14	01OCT14

AILA AUDIO CLE ON NURSES AND ALLIED HEALTH

The AILA Education Department has scheduled an audio seminar for Thursday, October 9, 2014 @ 2:00 pm (Eastern Time) entitled “Petitions for Nurses and Allied Healthcare Workers.”  MU Law’s Chris Musillo is the Moderator of this audio seminar.  Chris’ co-speakers are with Tiffany Baldwin and Carl Shusterman.

The audio seminar will include these topics:

• H-1B for Nurses: 2002 and 2014 USCIS Memorandum
• Using Schedule A for Nurses and Physical Therapists
• EB-2 Consideration for Healthcare Worker
• USCIS Reliance on the EDGE Database in Evaluation of Foreign Education
• The Role of State Licensing and Credentialing in H-1B and PERM Cases
• Drafting Immigrant Visa Applications for Roving Healthcare Workers
• Visa Screen: Who Needs It and Why?

The panel has reserved 30 minutes for Questions and Answers at the conclusion of the presentation.

US PT SHORTAGE IS GROWING

The Physical Therapy job market has long been predicted to be an area ripe for US labor shortages.  The 2014 Occupational Outlook Handbook projects that employment of Physical Therapists is expected to grow by 36 percent through 2022, which is “mush faster than the average for all occupations.”

The Conference Board’s new study From Not Enough Jobs to Not Enough Workers now reports that aging populations will cause even greater shortages than originally predicted in three targeted industries.  In a surprise to no one, healthcare is one of these three targeted industries. 

The press release from the study says that:

Health-related occupations. The same aging of the U.S. population that will curtail working-age population growth to as low as 0.15 percent by 2030 is also driving up demand for medical workers. At the same time, high education and experience requirements limit entry into the job market. The result is a dearth in many healthcare professions, including occupational therapy assistants, physical therapists and therapist assistants, nurse practitioners and midwives, and dental hygienists. Among doctors, optometrists and podiatrists are the specialists most at risk of shortage, with the general physicians and surgeons category not far behind.

The study has been cited in the Wall Street Journal, Bloomberg Businessweek, and PT in Motion.

WHY RECRUIT AN INTERNATIONAL HEALTHCARE PROFESSIONAL?

According to a 2012 “United States Registered Nurse Workforce Report Card and Shortage Forecast,” published in the American Journal of Medical Quality, 

“With an aging U.S. population, health care demand is growing at an unprecedented pace . . . The number of states receiving a grade of “D” or “F” for their RN shortage ratio will increase from 5 in 2009 to 30 by 2030, for a total national deficit of 918,232 RN jobs. There will be significant RN workforce shortages throughout the country in 2030; the western region will have the largest shortage ratio of 389 RN jobs per 100,000.”

The situation is no better in other allied healthcare occupations.  According to the Department of Labor’s Occupational Outlook Handbook by 2022, employment of Physical Therapists is expected to skyrocket by 36 percent.  The same is true of Occupational Therapists (29 percent), Pharmacists (14 percent), and Speech Language Pathologists (19 percent). 

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

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

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

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

She found that,

"foreign nurses, in particular Filipinos, tend to work in more demanding settings and maintain less desirable schedules - they are more likely to work in hospitals, work full-time, and do shift work, as compared to their native counterparts.

Natives are more likely to work part-time and choose jobs with standard schedules - for example, they tend to work in physicians’ offices and schools, etc. In terms of educational background, the majority of foreign nurses have at least a bachelor’s degree, whereas a larger fraction of natives have an associate degree. A more educated nurse workforce (as measured by the share of nurses in a hospital holding a bachelor’s degree) has been associated with better patient outcomes and higher nurse productivity."

500,000 UNFILLED RN JOBS BY 2022

The Occupational Outlook Handbook (OOH) is a treasure trove of data.  Government agencies, politicians, and employers use this data to analyze and assess trends in US employment.  The 2014 edition of the OOH shows that job openings in nursing is expected to outpace almost all other occupations.  In fact, healthcare occupations in fields like Physical Therapy, Occupational Therapy, Audiologists, and Home Health dominate the list of fastest-growing occupations. 

Traditionally, America has been welcoming to immigrants in occupational zones that Americans have been unwilling to fill.  Whether Congress recognizes this fact and improves the pathway for these workers to come to the US is still an open question.

Organizations such as FWD.us and the Partnership for a New American Economy are working exceptionally hard to convince legislators of the potential gains to the US economy by strategic immigration policy.  One of their recent projects has been to show the impact of immigration on a state by state basis, called Map The Impact.  Map The Impact allows users to see the local impact on restrictive immigration.

For instance, we can learn that there will be 60,000 open nursing positions in Florida alone by the end of the decade.  There will be another 10,000 open positions in the small state of New Mexico.

There have been some recent indications that the Republican’s animosity to immigration reform may be thawing.  Republicans such as likely Presidential candidate Jeb Bush and Arizona Sen. Jeff Flake have recently spoke positively of immigration reform.  For America’s sake, let’s hope others are listening.

MEXICAN TNs NO LONGER NEED USCIS APPROVAL

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

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

MU Law advises that the Employment letter includes:

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

Here is the list of qualified Healthcare Occupations:

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