H-1B CAP HAS BEEN REACHED

Last night the USCIS reported the H-1B cap has been reached for this fiscal year. Accordingly, the USCIS will not accept H-1B cap-subject Petitions. The next H-1B cap season begins on April 1, 2011, with start dates of October 1, 2011.

Please keep in mind that international workers who are working in the U.S. on an H-1B visa with another H-1B employer ordinarily 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.

In preparation of the next H-1B cap season, MU will be holding a free teleconference for our clients. The agenda for this teleconference includes:

1. H-1 Cap 2011 - analysis
2. H-1 Cap 2012 - a look ahead and projections
3. Discussion of the new Form I-129
4. Update on USCIS Site visits and DOL Audits
5. Strategy session: H-1B Dependent employers
6. MU's 5 Big Things to Stay Compliant!
7. BONUS - MU's 3 Even Bigger Things to Stay Compliant!!

If you are an MU client and interested in participating on this call, please email Jeana to register.

BALCA on Employee Referral Programs

The BALCA (Board of Alien Labor Certification Appeals) just this week released an opinion stating what an employer must do if it is to use the employer referral program recruitment step in the Labor Certification process. The case is In Re: SANMINA-SCI CORPORATION.

The BALCA says that there must be 3 parts to a satisfactory employee referral program.

(1) its employee referral program offers incentives to employees for referral of candidates,

(2) that the employee referral program was in effect during the recruitment effort the employer is

relying on to support its labor certification application, and

(3) that the Employer’s employees were on notice of the job opening at issue.

The interesting legal analysis is in the third part. In this case, the BALCA says that the employer must specifically note that the job opening was publicized to the employer's staff. In its analysis it said that Sanmina-Sci Corp gave notice in two ways: (a) the Notice Posting; and (b) internal web posting.

The interesting part is that the BALCA does not say if the case would have been approvable if only (a) or (b) existed. In Footnote 6, the BALCA specifically decided not to address that important legal question.

The reason that this question is important is because the (a) Notice Posting exists in every Labor Certification.

The take-away is this: employers should always make sure that the employer has "publicized" the employer referral program through either (i) a blast email to its relevant staff; (ii) an employer's internal website; (iii) an employer newsletter; (iv) a "paycheck stuffer"; or (v) some other similar method. To be safe, the employer should specifically mention the LC-proffered job.

As an aside, the BALCA also reiterates that an employer who posts for 10 days meets the Notice posting step as long as it proves that the employer was open for business during each of those ten days. This is helpful in cases where healthcare facilities are the employer, since these facilities are often open on weekends and holidays.

Typical healthcare occupations that require Labor Certifications include: Occupational Therapists, Speech Language Pathologists, Medical Technologists, and Doctors.

GAO recommends H-1B changes

The Government Accounting Office is Congress’ “Investigating Arm.” Congress often tasks the GAO to explore potential improvements to all sorts of government programs. One recent GAO task was to examine the H-1B program and to suggest recommendations to the program.

On Friday the GAO released its recommendations. Traditionally these recommendations are given consideration but are rarely implemented because of the political nature of immigration policy. Some of the recommendations require Congressional approval. Other recommendations only require Presidential (Executive) action. Still, these recommendations cast a light into the thinking of some of the brighter minds in the government.

MU’s summary of the recommendations are below the links to the report.

GAO Recommendations

Summary Report

Full Report

MU Summary of the GAO Recommendations

Recommendations requiring Congressional action

1. Consolidating the LCA so that it is filed with the USCIS, not DOL.
2. Granting USCIS subpoena power.
3. Holding staffing companies’ end-clients responsible for H-1B and LCA rules.

Recommendations requiring Executive Action

1. Better electronic links between USCIS and the Consulates and Embassies of the Department of State.
2. Better distribution of the H-1B numbers, such as allocating ¼ of the H-1B cap in quarterly batches and allowing employers to “rank” their desired H-1B petitions.
3. Allowing Petitioners with a strong compliance history to file streamlined H-1B Petitions.
4. Creating a webpage where all employers must post H-1B positions
5. Improve the DOL’s electronic database.

February Visa Bulletin

The Department of State has just released the February 2011 Visa Bulletin, which is the fifth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had very small progress in several classifications.

February 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01JUL06	08MAY06	Current
EB-3	01APR05	01JAN04	22FEB02	08JUL03

H-1B Count: 58,700

The latest USCIS update says that 58,700 of the 65,000 regular H-1B numbers were used as of January 7, 2011. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000. MU predicts that the H-1B cap will be reached by the end of the month. MU clients strongly are urged immediately to initiate and file any regular cap-subject H-1B cases.

Prospects for Healthcare Immigration in 2011

The last few years have seen a declining American economy, dramatically reduced hiring numbers, and a Congress that has proven incapable to lead the country on badly needed immigration reform. Still, thanks to declining demand for H-1B numbers from the IT community, there are some signs that the worst may be over for healthcare immigration. There may even be a chance for positive healthcare immigration for nurses, although not where it is most needed.

Although the 112^th Congress is divided and that usually means gridlocked legislation initiatives, a coalition of like-minded Senators and Congressman may be able pass long-needed legislation aimed at solving one obvious staffing shortage in the healthcare industry – nursing.

Nursing is the largest professional occupation in healthcare. While the nursing shortage has abated in many areas in the US, most economists predict the reemergence of the nursing shortage in the near term. Thursday’s jobs’ news was mixed. The positive news was that the unemployment number fell to 9.4%, which is the lowest percentage in 18 months.

Might the 112^th Congress consider a nurse visa bill aimed at reducing the 5-6 year wait for an immigrant nurse to enter the US? Perhaps. But the better chance is that the Congress looks to restore the H-1C visa, which provides badly-needed visas for 14 of the direst healthcare facilities. Rep. Lamar Smith, who is the forthcoming Chair of the Judiciary Committee, represents South Texas, near where several of the 14 facilities are located. With some advocacy, it is possible that the H-1C could be slightly amended to liberalize a revived H-1C.

For specialty occupation allied healthcare positions that require a bachelor degree for entry into the position, such as Physical Therapists, Occupational Therapists, Speech Language Pathologists, the IT industry’s minimal usage of H-1B numbers looks to continue in 2011. Coupled with increasing opportunities for EB-2 immigrant visas, and notably faster labor certification times, prospects remain bright for applicants in these occupations in 2011.

While a revived H-1C and more opportunities for H-1Bs are not as desired an increase to the EB-3 retrogression-driven quota, these factors may make 2011 a better year for applicants and employers than the last few.

H-1B Cap To Be Reached

With the H-1B cap nearly reached, MU clients strongly are urged immediately to initiate and file any regular cap-subject H-1B cases. The H-1B cap likely will be reached in January 2011.

The latest USCIS update says that 53,900 of the 65,000 regular H-1B numbers were used as of December 17, 2010. While demand typically levels off during the Christmas and New Years holidays, it is expected that the demand will rise again in the first weeks of January. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

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 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.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs. As of December 17, 2010, 19,700 of the 20,000 have been received by USCIS. While no official USCIS announcement has been issued, that cap effectively may have already been reached.

Happy Holidays!

MU wishes all of its clients and friends a joyous Holiday season and a healthy New Year.

Dreaming

The only potential immigration bill that will come out of the American Congress this Lame Duck Session is the Dream Act. The Dream Act proposes to provide a “path” to legalization for illegal/undocumented immigrants who: (1) entered the US as minors (under 16), (2) have completed high school and either served in the US military for two years or completed at least two years of college, and (3) are of good moral character (e.g. no criminal convictions). The bill will only apply to those that have been in the US for five years or more on the day of enactment, so there is no risk of encouraging future illegal entrants. The bill has gone through a few different iterations, but these are the basic concepts.

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.

January 2011 Visa Bulletin

The Department of State has just released the January 2011 Visa Bulletin, which is the fourth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had small progress in several classifications.

January 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	22JUN06	08MAY06	Current
EB-3	22MAR05	15DEC03	01FEB02	15APR03

POEA: Job scammers target medical workers

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.

H-1B Cap Update: Fewer than 15,000 H-1B visas remaining

As of November 26, 2010, approximately 50,400 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 18,400 H-1B petitions for aliens with advanced degrees. There are 65,000 “regular” cap-subject visas and 20,000 “advanced degree” H-1Bs”.

Historically, as the H-1B usage number has gotten closer to 65,000, the number of filings increases. Accordingly, MU urges all MU to prepare that the H-1B cap will be reached in January 2010, and may even be reached by year’s end.

The H-1B is the common employment-based nonimmigrant visa. The H-1B is a common visa for healthcare professionals such as Physical Therapists, Occupational Therapists, Speech Language Pathologists, some nursing positions, and other professions ordinarily associated with a Bachelors degree or greater. The H-1B traditionally has been in great demand by the IT community.

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.

The future of nursing and the H-1B

H-1B visas for nurses can be difficult, although many are approved each year. The key driver for success is not the applicant’s credentials, but the hospital/facility’s educational entry requirements for the position. In order to obtain an H-1B visa, the position must require a Bachelors degree as the minimum educational requirement for the position.

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.

December 2010 Visa Bulletin

The Department of State has just released the December 2010 Visa Bulletin, which is the third Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had small progress in several classifications.

December 2010 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	08JUN06	08MAY06	Current
EB-3	22FEB05	08DEC03	22JAN02	01JUL02

New Location? No new H-1 is necessary

In April the USCIS announced a forthcoming change to the I-129, which is the base Form for H-1B petitions. The proposed Form included a little-noticed new requirement that an amended H-1B Petition must be filed whenever a H-1B worker changes his geographical location. This was inconsistent with prior USCIS guidance.

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.

Keeping our eye on the H-1B Count

by Cindy Unkenholt and Chris Musillo

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.

NPTE-i Registration and Lawsuit

Physical Therapists educated in the Philippines, India, Egypt and Pakistan are now eligible to register for the NPTE-i. The NPTE-i is the FSBPT’s licensing exam will be given on May 25, 2011. FSBPT claims that the segregated exam is necessary because of pervasive, ongoing security breaches by graduates of physical therapy schools from these countries, although their evidence for this claim is unavailable to the public.

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.

USCIS Fees Increase

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
I-129	$325
I-131	$360
I-140	$580
I-485	$1,070
I-539	$290
I-765	$380
I-907	$1,225

You can find the new fees on the USCIS’ webpage: www.uscis.gov.

AAIHR to sue FSBPT over Discrimination Policy

The AAIHR just has announced that it will be pursuing a legal strategy against the FSBPT. The AAIHR has been working with several Attorneys General (AG) offices in strategic states to outline the governance issues and vulnerability of the states based on the FSBPT action. It also has hired litigation counsel, Latham and Watkins, a major litigation firm. The litigation counsel has prepared a Complaint against Georgia and FSBPT on behalf on plaintiffs. The Complaint will be filed soon.

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.

MU as AILA Faculty

MU’s Chris Musillo is one of the three presenting faculty members for the American Immigration Lawyers Association's November 4, 2010 teleconference on Allied Health Care Immigration. The speakers' topics of discussion include: trends with licensing examinations, visa screening and state licensing for foreign allied health care professionals. Additionally they will address pitfalls and identify effective practices in these areas:

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.