H-1B CAP ONLY AT 17,400

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 17,400 H-1B cap-subject Petitions have been receipted by USCIS as of June 24, 2011. This is much lower than in recent years and likely reflects the fact that while the US economy has improved in the recent months, it is not nearly as robust as it was in the middle part of the last decade.

To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 30,000 H-1Bs through July 1, 2010. In FY 2009, there was about 45,000 H-1Bs receipted in by USCIS through July 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

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

For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy.

POEA AND MANILA EMBASSY MEET TO DISCUSS FRAUD

The Fraud Prevention Unit of the US Embassy along with representatives from the POEA recently held a Conference on Fraud Prevention and Protection of foreign workers. The June 10, 2011 meeting was held at the Hyatt Hotel in Manila.

The POEA sought and continues to seek to educate Philippine workers about their rights and to combat illegal recruiting.

The US Embassy in Manila has announced the William Wilberforce Act Tagalog version. The act requires that people are made aware of their immigration rights.

Importantly the US officials also discussed their review standard before visa issuance. They reminded attendees that USCIS approval of the I-129 does not guarantee H-1B workers a visa. Before the H-1B visa is issued the Embassy reviews each case to insure that there is a bona fide job opportunity.

JULY 2011 VISA BULLETIN

The Department of State has just released the July 2011 Visa Bulletin. The Chinese and Indian EB-2 categories had notable progress, each jumping 6 months. On the other hand, the EB-3 categories had very little progress from last month.

July 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	08MAR07	08MAR07	Current
EB-3	08OCT05	01JUL04	01MAY02	01JUL05

US HEALTHCARE SECTOR GROWING SIGNIFICANTLY

The U.S. Bureau of Labor Statistics’ (BLS) has just reported that the employment numbers in the healthcare sector continue to defy the overall US economy. Hospitals and other healthcare employers have been adding an average of 24,000 jobs per month from June 1, 2010 – June 1, 2011.

Nursing is the largest employment segment of the healthcare sector. While the nursing shortage abated between 2008 and 10, the BLS still projects nursing to be the shortest occupational classification in the foreseeable future, as do private foundations.

For instance, the Robert Wood Johnson Foundation’s Institute of Medicine released its report on The Future of Nursing in October 2010. The report called for increasing the number of baccalaureate-prepared nurses in the workforce to 80% and doubling the population of nurses with doctoral degrees.

Foreign-trained nurses are almost always baccalaureate-prepared and will necessarily have to be a component of any increase in US nurse supply. While no one wants foreign nurses to take US nurses’ jobs, the numbers plainly show that foreign nurse recruitment must be increased or else US patient’s care will be compromised.

2011 NPTE SUMMIT TO FOCUS ON SECURITY

FSBPT has scheduled an NPTE Summit to focus on policy implications for PT licensure in light of recent NPTE security breaches. FSBPT seeks to create a set of recommendations to the FSBPT board of directors about the testing process and to develop a preliminary communication strategy of the recommendations to members and stakeholders.

Expected attendees include jurisdiction members and administrators, FSBPT committee members and representatives of APTA’s board and staff, Academic Council, Student Council, PTA Caucus and Prometric. The AAIHR should also be in attendance.

The NPTE Summit is scheduled for July 29-31, 2011 in Dallas, Texas.

TWO NEW NURSE BILLS INTRODUCED

Two recent bills have been introduced in the US Congress, both of which purport to ease the immigration process for healthcare professionals.

HR 1929 has been introduced by Rep. James Sensenbrenner (R-WI). Rep. Sensenbrenner has long been harsh on legalization of the undocumented, but sensible on immigration for professionals. Rep. Sensenbrenner has submitted versions of HR 1929 in past Congressional sessions, although none have ultimately become law. Rep. Jared Polis (D-CO) is a co-sponsor of the bill.

HR 1929 calls for 20,000 immigrant visas to be issued to Registered Nurses. Nurse’s immediate families would also get immediate immigrant visas, but they would not count against the 20,000 quota. In order to use these special visas, employers would be charged an additional $1,500, which would go to funding US nursing programs. These visas also would be available for Physical Therapists. This bill is very similar to several prior bills, notably the Schedule EX visa in the mid-2000s that allowed a one-time visa quota of 50,000 visas for nurses and their families.

While MU applauds the introduction of HR 1929, we expect that the bill will not be enacted into law.

HR 1933 has been introduced by Rep. Lamar Smith of Texas. Like Rep. Sensenbrenner, Rep. Smith has long been harsh on legalization of the undocumented, but sensible on immigration for professionals. Rep. Smith’s bill calls for the revival of the H-1C program. The H-1C program had been around since the mid-1990s and allowed 14 special hospitals the opportunity to employ nurses. These 14 hospitals are mainly in Texas, which explain Rep. Smith’s sponsorship. The H-1C expired in December 2009 and was not reenacted.

MU is in favor of passage of HR 1933, but we are also skeptical that the bill can become law.

NPTE EXAM DATES FOR 2012

FSBPT has set the NPTE Exam test dates for 2012. FSBPT established a uniform testing policy after it found evidence of testing breaches. In response to testing breaches, FSBPT first sought to establish a separate but equal NPTE exam for graduates of Philippine, Egyptian, Indian, and Pakistani schools.

A Georgia court ruled that the FSBPT's plan was invalid under law and recently settled the lawsuit with the Georgia plaintiffs. The fixed-date testing program was the outcome of the lawsuit.

The 2012 testing dates are:

January 30, 2012

March 29, 2012

July 2, 2012

July 31, 2012

October 23, 2012

MU LAW GALA SPONSOR OF IACC

Musillo Unkenholt LLC is proud to be a Gala sponsor at tonight’s First Anniversary Gala Celebration for the Indian American Chamber of Commerce – Greater Cincinnati and Northern Kentucky.

In addition to Musillo Unkenholt, Gala sponsors include US Bank, University of Cincinnati Health, Fifth Third Bank, Anthem Health, PNC Bank, Cincinnati Children Hospital, and a dozen other local Cincinnati businesses.

The event features comedian Rajiv Satyal, as the Master of Ceremonies, traditional Indian dance groups, business leaders and other dignitaries.

JUNE 2011 VISA BULLETIN

The Department of State has just released the June 2011 Visa Bulletin. This Visa Bulletin had modest progress in several classifications, notably the EB-2 categories.

June 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15OCT06	15OCT06	Current
EB-3	15SEPT05	15MAY04	22APR02	22DEC04

PRES. OBAMA'S IMMIGRATION SPEECH

On Tuesday President Obama is expected to make a major immigration speech at the US-Mexican border town of El Paso, Texas. That the speech is taking place in El Paso speaks volumes about the US’ immigration policy; the debate on the undocumented overwhelms any other immigration issues that this country has.

The need for healthcare workers in this country is about to explode. Both private and public economic forecasters predict that the jobs that grew in the 2000-10 decade will be the jobs where growth is seen in the 2011-20 decade. The Department of Labor says that these are largely healthcare jobs. It will be telling if the President tries to position legitimate immigration alongside his enforcement aims.

WHAT THE LACK OF H-1B FILINGS REALLY MEANS

This year a mere 9,200 cap-subject H-1B Petitions have been filed through April 29. In prior years we have seen many more H-1B cases accepted as slots were available; in the go-go years of the 2000s, the H-1B cap was reached on the first day.

This year's paucity of H-1B Petitions provides compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries. That argument just does not jibe with what is actually happening.

If H-1B visa labor was being used primarily to lower US workers salaries, the H-1B filing numbers wouldn’t be impacted to any meaningful degree. Why? Because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less. This logic is straightforward.

Yet, this year we’ve seen a dramatic downtick in H-1B visas filed in industries like Information Technology and Finance. Meanwhile industries with continued staffing shortages, such as healthcare and teaching, continued to file H-1B Petitions. If the H-1B program was being used to lower salaries, why aren’t the IT and financial industries continuing to file H-1B petitions? Are these industries not interested in cutting costs?

Critics of the H-1B system fail to acknowledge just how well the system actually works. In robust times, the H-1B system allows growing companies to attract more workers from overseas when they can't fill those jobs with US workers. In down times, when jobs are few, the market does what it is supposed to do and fewer H-1B job offers are made.

If Congress really wants to reform the H-1B process, it ought to eliminate the arbitrary quota and just let the market sort out the numbers question. Congress also ought to give non-bachelor degree occupations with well-documented staffing shortages, such as nursing, access to the H-1B program.

H-1 CAP MOVES SLOWLY

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 8,000 H-1B cap-subject Petitions have been receipted by USCIS. This is much lower than in recent years and likely reflects the fact that while the US economy has improved in the recent months, it is not nearly as robust as it was in the middle part of the last decade.

The USCIS has receipted in about 6,000 Masters Cap H-1B Petitions. To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there was about 40,000 H-1Bs receipted in by USCIS through May 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

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

For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy.

BLS: HEALTHCARE JOBS STILL GROWING

The latest US Bureau of Labor Statistics Employment Situation Summary says that although US unemployment rate is still at 8.8%, jobs are still plentiful in healthcare. Since November, many Americans have found jobs. The unemployment rate has tumbled from the November high of nearly 10%.

Health care employment continued to increase in March (+37,000 jobs). Over the last 12 months, health care has added 283,000 jobs, or an average of 24,000 jobs per month. The conclusion remains the same for employers in this sector as it has for the previous 20+ years: internationally-trained staff will remain a significant part of the US healthcare workforce.

PRES. OBAMA HOLDS IMMIGRATION MEETING

With President Obama's re-election campaign beginning in earnest, he is anxious to court immigration-friendly voters. These voters tend to live in important states such as Florida, Texas, and California. The President is far from a sure thing to be re-elected. The President's greatest "strength" right now, is the lack of compelling Republican challenger.

In order to burnish his credibility with these pro-immigration voters who could sway a tight election, the President yesterday met with high-profile immigration-friendly people, such as Arnold Schwarzenegger, New York Mayor Michael Bloomberg, and San Antonio Mayor Julian Castro, all who have called on the President to lead on immigration reform.

Unfortunately, no serious analysts believe that the President is doing anything other than paying lip-service to immigration reform, despite needed visa liberalization in shortage occupations, such as Physical Therapy, Occupational Therapy and Registered Nursing.

MAY 2011 VISA BULLETIN

The Department of State has just released the May 2011 Visa Bulletin. This Visa Bulletin had small progress in several classifications. Notably, the India EB-2 date moved two months.

May 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01AUG06	01JUL06	Current
EB-3	22AUG05	15APR04	15APR02	08SEP04

The Bulletin also included a lengthy explanation and prediction of future month's expected dates:

Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: three to six weeks
China: one to three weeks
India: none to two weeks
Mexico: although continued forward movement is expected, no specific projections are possible at this time.
Philippines: three to six weeks

Please be advised that the above ranges are estimates based upon the current demand patterns, and are subject to fluctuations during the coming months. The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced.

US ENVOY TO PN NURSES: “BE GREAT”

“Dare to be great nurses… Dare to build a better Philippines and a better America.” This was US Envoy to the Philippines Henry Thomas’ challenge to the graduating class of Angeles University Foundation’s College of Nursing on Saturday.

While his challenge was clear, his views on the likelihood of the retrogression were less so. “All I can say is, clearly, there’s a demand in the US but also, as President Obama has said, we have nursing graduates in the US who also have to finish their examinations and obtain jobs.”

This wishy-washy statement perfectly captured President Obama’s inconsistency and lack of focus on the necessity of alleviating the retrogression. On one hand, the President has said many of the right things on making an immigration system that is fair to all – American patients, American healthcare staff, and foreign-trained healthcare staff. On the other hand, his lack of action and lack of leadership has frustrated all stakeholders.

FOREIGN AFFAIRS MANUAL UPDATED

The Department of State has updated their Foreign Affairs Manual (FAM) to reflect the fact that B1/B2 applicants ought to be given visas to come to the US to take the NPTE. MU encourages all B1/B2 applicants who had been denied B1/B2 visas for this reason to re-apply for a B1/B2 interview.

As we mentioned in our last MU update, all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US. Failure to prove nonimmigrant intent remains a valid reason for the Consular/Embassy official to deny the B1/B2 application.

Updated FAM:

9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant

(CT:VISA-1635; 03-31-2011)

The requirements for classification as an H-1B nonimmigrant professional

may or may not include a license because States have different rules in this

area. If a State permits aliens to enter the United States as a visitor to take

a licensing exam, then USCIS will generally require a license before they will

approve the H-1B petition. However, some States do not permit aliens to

take licensing exams until they enter the United States in H-1B status and

obtain a social security number. Therefore, a visa should not be denied

based solely on the fact that the applicant does not already hold a license to

practice in the United States.

B1/B2 VISAS SHOULD BE AVAILABLE TO NPTE REGISTRANTS

As many MU friends and clients are aware, US Embassies have been denying PT applicants a B1/B2 visa, if the applicant has sought to come to the US to sit for the NPTE. The denials have been based on the Embassy mistakenly belief that taking the licensing exam is not a valid reason to enter the US on a B1/B2.

MU just has learned the Department of State's HQ office in Washington DC is in the process of issuing a revised Guidance to the US Embassies, including Manila. The Guidance should correct this mistaken policy.

Please keep in mind that all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US.

INDIA EB-2 SHOULD LEAP FORWARD

The Department of State has told AILA that because of decreasing demand for EB-1 visa numbers, the EB-2 category will be given at least 12,000 additional visa numbers. The 12,000 numbers will largely be given to Indian EB-2 applicants. EB-2 Chinese natives may also be positively impacted by this news.

The May 2011 Visa Bulletin, which should be released in mid-April 2011, should reflect this news.

The EB-2 category is appropriate for positions that require a Masters Degree or a Bachelors Degree and five years of progressive experience and typically includes Doctors, Physical Therapists, Occupational Therapists, and other professions that require advanced degrees.

FEWER NURSES MEANS GREATER RISK OF DEATH

Sometime in 2011, Congress may wish to revisit the US’ immigration policy. MU has consistently called on Congress to raise the artificial limits on true shortage occupations, such as Registered Nursing. At present, it takes a fully-qualified foreign-trained Registered Nurse about six years to obtain an immigrant visa. These nurses pass identical licensing exams to US nurses. They also must pass English fluency exams.

The Department of Labor continues to point to nursing as one of the occupations in the shortest supply.

Now, comes a March 17, 2011 New England Journal of Medicine research paper confirming that Fewer Nurses Means a Higher Risk of Death. The study, authored by well known researchers such as Dr. Peter Buerhaus, cites hundreds of thousands of admissions and nurse work shifts. The researchers found that a patient’s risk of death increased by about two percent for each work shift that was what the researchers categorized as understaffed.

The study was also subject of a recent Scientific American podcast, which is freely available for download.

The US’ immigration policy is woeful on so many fronts, but liberalized nurse visa rules should be a simple one to fix because the benefits to Americans would be enormous.