H-1B CAP OPENS APRIL 2

The Fiscal Year 2013 (FY2013) H-1B cap season will begin on Monday April 2, 2012. For the last several years the H-1B cap season has averaged nine months before all 65,000 H-1B regular cap slots were used. Because of improvements in the US economy, MU Law expects that the 65,000 H-1B regular cap slots will be used by Summer 2012, perhaps as soon as May 2012.

MU lawyers have informally polled our clients and other AILA attorneys in an attempt to gauge the duration of this year’s H-1B season. Based on these conversations, MU Law's best estimate is that the H-1B visa quota will be exhausted in June/July of 2012, although some prognosticators think it could be reached in May 2012. We will make regular updates to our client base as the USCIS releases information about cap usage.

Additionally, MU Law expects that the 20,000 H-1B US Masters Cap will be used quicker than the H-1B regular cap. This is not a great concern because any US Masters Graduates who do not obtain a slot in the H-1B US Masters cap can apply for an H-1B regular cap slot.

Any cap-subject H-1B petition that is filed after April 1 allows the Beneficiary to begin working in H-1B status on October 1, 2012. Students who hold F-1 OPT student status can remain with valid work authorization through October 1, 2012, provided that their H-1B Petition is field and accepted by USCIS.

Because of the uncertainty in these estimates, MU Law urges all clients immediately to initiate H-1B cap-subject petitions. H-1B cap-subject petitions include:

· New overseas H-1B hires

· Beneficiaries on another nonimmigrant status, such as H-4, L-1, or F-1.

· H-1B workers who hold H-1B cap-exempt status by virtue of the filing of the H-1B with a University or research facility.

MAY VISA BULLETIN WILL RETROGRESS FOR SOME EB-2

The Department of State’s point man on the Visa Bulletin has confirmed for AILA that India and China EB-2 will retrogress to August 15, 2007, a dramatic retrogression from the recent progression of China and India EB-2 number. Charlie Oppenheim, Chief, DOS Immigrant Visa Control & Reporting, says that demand for the EB-2 numbers is high due to the progression of EB-2 dates from November 2011 – April 2012.

USCIS has informed Mr. Oppenheim that they will continue to “preadjudicate” adjustment applications received through April. The “preadjudicated” cases will be held by the State Department in the “pending” demand file. That way, the cases will be ready in October, or earlier, if the current number use pattern changes, and they are needed at the end of this fiscal year to assure utilization of the full employment-based permanent resident visa allocation.

The Department of State historically has progressed dates to stimulate demand in the visa numbers. That practice came under some criticism during the Summer 2007 “VisaGate” incident when the DOS progressed to ‘current’ all categories in response to the USCIS’ inability to approve any I-485, Applications for Adjustment of Status. This flooded the USCIS with 300,000 Applications in the Summer 2007, forcing USCIS to begin approving I-485 Applications. Since VisaGate the progression of visa number has been measured, until this accelerated EB-2 progression began in November 2011.

TB AWARENESS CAMPAIGN BY US EMBASSY - MANILA

The US Embassy in Manila has begun an awareness campaign about Tuberculosis (TB). About fifteen percent of all visa applications are denied or delayed as a result of high TB numbers. TB is the number one medical reason for the denial or delay of a visa application. All immigrant applicants must prove that they have been immunized against the major communicable diseases.

According to the Embassy, the Philippines has the ninth-highest TB rate in the world. TB is the sixth leading cause of death. About one hundred Filipinos die of the disease every day. If you are living in Manila and plan on immigrating to the US, please be sure to have your immunization records up-to-date. Indeed, even if you do not plan on coming to the US, it is a good idea to protect yourself.

The Embassy has posted a video on its Facebook page by Project Blue Balloons, which highlights this tragic disease.

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EB-2 EXPECTED TO RETROGRESS

For the last several months, the EB-2 immigrant (green card) visa numbers have progressed in a dramatic way. Indian and Chinese nationals with priority dates of 01MAY2010 or earlier are eligible to file their I-485 Applications. The November 2011 Visa Bulletin's EB-2 dates for India and China were 01NOV2007. This progression of priority dates has allowed many Indian and Chinese natives to file their I-485, Applications for Adjustment of Status.

This steady movement of priority dates is expected to end on either May 1, 2012 or June 1, 2012. At the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim, Chief, Visa Control and Reporting at DOS, informed AILA Members that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. This reflects the fact that many I-485 Applications have been filed since November 2011, taking advantage of these favorable priority dates.

All EB-2 Chinese and Indian natives with priority dates of 01MAY2010 of earlier are encouraged to file their I-485 Applications for Adjustment of Status before the inevitable retrogression in May or June.

APRIL 2012 VISA BULLETIN

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

This Visa Bulletin did not show any progress in the EB-2 categories, after several months of big progressions. The EB-3 categories had their usual modest gains of a few weeks in all categories.

April 2012 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01MAY10	01MAY10	Current
EB-3	08APR06	01MAR05	01SEP02	08APR06

PREPARING FOR AND PROJECTING THE H-1B CAP

The Fiscal Year 2013 (FY2013) H-1B cap season will begin on April 1, 2012. Last year (FY2012), the H-1B cap moved very slowly -- only 8,000 H-1Bs were received in April 2011. The slow pace continued through the spring and summer. As the US economy improved, the H-1B pace quickened. The H-1B cap was reached in November 2011.

On a histocial basis, FY2012 moved very slowly. In FY 2011, which began April 1, 2010, the USCIS had receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there were 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.

It is unknown what the FY2013 H-1B demand will be. In speaking with some clients, MU expects the H-1B cap to move quicker than last year. However, MU expects that the H-1B cap will remain open until at least mid-summer.

If you are considering filing an H-1B cap-subject petition, MU 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

RETROGRESSION AND THE US NURSE IMMIGRATION PROCESS

MU receives many emails about the nurse immigration process and retrogression. We have prepared this article explaining these issues.

Part One

Registered Nurses must clear many hurdles before they are eligible for a US immigrant visa (Green card). The nurse must get into a good university and work hard to take and pass their exams. They must then have their education evaluated against the American standard.

Once that happens the nurse must pass the US licensing exam: the National Council Licensure Examination (NCLEX). This is the same examination taken by thousands of US nurses every year. Foreign-trained nurses must also take and pass an English fluency examination. All of these items must be evaluated by an independent organization, the Commission on Graduates of Foreign Nursing Schools (CGFNS).

Lastly, the nurse must find a US employer who is willing to extend an offer of employment where the wage is not less than the average of similarly employed nurses. Once the offer is extended and the nurse accepts the offer, she is fully eligible to have a US EB-3 green card filed on her behalf.

The lawyer works with the nurse, the employer, and the recruiter to properly file a green card petition. This establishes the nurse’s “priority date.” The green card petition is reviewed by a qualified USCIS officer who may ask for further evidence in the event that there are additional data needed to approve the petition. Finally, the EB-3 green card petition approved!

And then the nurse waits. And waits. And waits. Presently the US Consulates and Embassies are allowed to issue an EB-3 green card to a nurse whose green card petition was filed with a priority date from early 2006 – essentially a six year wait.

NPTE HANDBOOK

The FSBPT, which produces the US Physical Therapy Exam, has just produced an NPTE Candidate Handbook, along with a revamped Fixed Testing webpage.

The Candidate Handbook outlines the FSBPT's position on testing security and the protection of the integrity of the exam. It includes a section on recalling and sharing questions from prior exams.

The NPTE is the property of the FSBPT and is protected by contract, trade secret, and federal copyright laws. It is a violation of those laws, and thus illegal, to share any information whatsoever about any NPTE question. In particular, sharing information about a NPTE question recalled from memory or asking someone who has taken the NPTE to share such information is illegal.

The Candidate Handbook includes a helpful Frequently Asked Questions section, a Test Content Outline, and Sample Questions.

The revamped webpage streamlines the important information about the exam, including testing dates and helpful hints.

MU LAW NEW OFFICE

Musillo Unkenholt is pleased to announce that we will be moving our office. Effective Monday February 27, 2012 our new address will be:

Musillo Unkenholt, LLC

205 West Fourth Street, Suite 1200

Cincinnati, OH 45202

We are moving into the historic Cincinnati Textile Building. As a result of the move we will be clsoing our office at 2PM ET on Friday and we also expect to be closed on Monday.

Our phone number, fax number, and email addresses will remain the same. If you are in the Cincinnati area, please let us know; we would love to show off our new larger modern office!

WILL SEN. GRASSLEY KILL IRISH VISAS AND HR3012?

Sen. Grassley (R-IA) is no friend of employment-based immigration. He continues to have a very simplistic veiw about the way that modern economies are run. His myopic veiwpoint may now be the cause of the defeat of the Irish E-3 Visa Bill and of HR 3012, The Fairness for High-Skilled Immigrants Act.

Politico now reports that Sen. Scott Brown (R-MA) has been aggressively lobbying Sen. Grassley to release his "hold" on these paired bills. Sen. Grassley alone is responsible for these bills inability to become law. Sen. Brown has taken substantial efforts to get Sen. Grassley to release the hold. It is conventionally believed that passage of the Irish E-3 bill is a key part of Sen. Brown's re-election campaign.

The Irish E-3 bill would be similar to the Australian E-3 visa bill, which allows most bachelor-degree prepared workers to obtain an H-1B-like visa without many of the administrative burden incumbent in the H-1B. If the bill passes Physical Therapists, Occupational Therapists, Speech Language Pathologists, and other allied health workers with bachelors degrees who are Irish citizens would have another avenue to come to the US. Irish Permanent Residents would be ineligible for the E-3.

The Fairness For High-Skilled Immigrants Act seeks to eliminate the individual per-country numerical quotas that exist in the allocation of employment-based green cards. The per-country restrictions would be eliminated over three years.

MARCH 2012 VISA BULLETIN

The Department of State has just released the March 2012 Visa Bulletin. The March Visa Bulletin is the sixth Visa Bulletin of US Fiscal Year 2012.

This Visa Bulletin again showed much improvement in the EB-2 categories. The China and India EB-2 numbers jumped another 5 months, and now stand at May 2010. This was expected as we recently wrote. In the last three months these EB-2 numbers have improved over two years.

The EB-3 categories had much more modest gains -- a few weeks in all instances.

March 2012 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01MAY10	01MAY10	Current
EB-3	15MAR06	01JAN05	22AUG02	15MAR06

MU LAW FEATURED AT CBA

Musillo Unkenholt LLC is proud to have two of its attorneys speaking at the Cincinnati Bar Association's Immigration Law Primer on March 8, 2012.

Maria Schneider, who serves as Chair of the CBA's Immigration Law Committee, is a Co-Coordinator of the event. Chris Musillo will be speaking on immigration issues for Subcontractors and Staffing Companies.

Attendees to the day-long event will gain 5.75 credits toward their Continuing Legal Education requirements.

SENATE SET TO MOVE ON IRISH VISA BILL

Irish-American lobbyists have been pushing for an E-3 visa bill for Irish nationals. The bill (S.1983) took a big step forward this week when Sen. Chuck Schumer (D-NY) "hotlined" the bill, which a procedure to expedite the passage of the bill.

The Irish E-3 bill would be similar to the Australian E-3 visa bill, which allows most bachelor-degree prepared workers to obtain an H-1B-like visa without many of the administrative burden incumbent in the H-1B. If the bill passes Physical Therapists, Occupational Therapists, Speech Language Pathologists, and other allied health workers with bachelors degrees who are Irish citizens would have another avenue to come to the US. Irish Permanent Residents would be ineligible for the E-3.

The bill also now includes The Fairness For High-Skilled Immigrants Act, which seeks to eliminate the individual per-country numerical quotas that exist in the allocation of employment-based green cards. The per-country restrictions would be eliminated over three years.

THE VISA BULLETIN IN THE MONTHS' AHEAD

The American Immigration Lawyers Association’s Business Committee Chairs met with the Department of State’s Charles Oppenheim last week. Based on the meeting, AILA predicts that EB-2 numbers will jump another six months when the March 2012 Visa Bulletin is published in mid-February. This jump of priority dates comes after several months of rapid progression of priority dates in the EB-2 category. The EB-2 progression will stop at that point until the summer. There was no prediction about the progression of EB-3 petitions.

Charles Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month. Both Mr. Oppenheim and the USCIS are surprised at how low the demand has been for employment-based green cards in 2011-12. Mr. Oppenheim says that about 10-15% of all employment-based green cards are Consular Processed and 85-90% are Adjustment of Status petitions.

There has been anecdotal evidence that there are many EB-3 to EB-2 upgrades, although the true impact on EB-3 priority dates is still unknown. The slow advancement of priority dates in early Fiscal Year 2011 was due in part by these upgrades. Mr. Oppenheim’s office does not clear an upgraded EB-3 number until the upgraded EB-2 petition is approved.

ONLY FOUR NPTE EXAMS IN 2013

To little fanfare, the Federation of State Boards of Physical Therapy has announced that there will only be four National Physical Therapy Exam testing dates offered in 2013. The exam dates for 2013 are expected to be released in mid-2012.

The FSBPT is offering five exams in 2012 and offered three exams in the second-half of 2011. FSBPT notes that:

We understand and appreciate that more test dates – not fewer – is what our stakeholders would like. However, in order to maintain the validity of the exam and maintain the current score reporting process, we are able to offer only four dates in 2013.

FSBPT began fixed date testing on July 1, 2011, as a result of concerns over the security of the exam. The NPTE is only offered in the United States and is the only one of the three major healthcare licensing exams to have adopted a fixed date testing schedule. The NCLEX-RN (Registered Nurse) and the OTR (Occupational Therapy) exams are offered around the world and on most business days. Both the NCLEX-RN and the OTR exams have not had notable security breaches, unlike the NPTE.

FOREIGN TRAINED RNs NUMBERS CONTINUE TO PLUMMET

During most of the 2000s, internationally trained nurses made up about 10-15% of all new RNs that came on-line in the US. These numbers disappeared with the onset of retrogression in January 2008. The retrogression, now in its fourth year, has eviscerated the number of foreign-trained RNs.

In 2008, about 51,373 internationally educated RNs passed the NCLEX exam. In 2011, that number has been more than halved to 23,266, a drop of about 28,000. Fortunately for US healthcare users, US-educated RNs have filled half of the gap; about 14,000 more US-educated nurses now take the NCLEX-RN then did in 2008.

While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. By the end of the decade the US could be short 250,000 to 1 million nurses, depending on whose estimates you read.

NCLEX-RN Test Takers
	US Educated	Int'l Educated	Total
2008	158,385	51,373	209,758
2009	161,362	40,622	201,984
2010	167,597	30,178	197,775
2011	172,041	23,266	195,307

Source: NCSBN Fact Sheets

FEBRUARY 2012 VISA BULLETIN

The Department of State has just released the February 2012 Visa Bulletin. The February Visa Bulletin is the fifth Visa Bulletin of US Fiscal Year 2012.

This Visa Bulletin again showed much improvement in the EB-2 categories. The China and India EB-2 numbers jumped another 12 months, and now stand at January 2010. In the last two months these EB-2 numbers have improved almost two years. The February Visa Bulletin notes that:

China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

The EB-3 categories had much more modest gains -- a few weeks in all instances.

February 2012 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01JAN10	01JAN10	Current
EB-3	22FEB06	01DEC04	15AUG02	22FEB06

CGFNS BEGINS EXPEDITED REVIEW

On Monday CGFNS will begin to offer an Expedited Review Service for their Credentials Evaluation Service (CES). This is an optional service for faster review. CGFNS will charge $150 for Expedited CES, unless the Application has previously been filed and is pending with CGFNS. Applicants with an existing CES can upgrade their CES to Expedited Review for $250.

The Expedited Service will result in a complete report within ten business days, provided that all requisite documents are at CGFNS. If all required documents are not with CGFNS, CGFNS will notify the applicant of any missing or insufficient documents. Once this deficiency is cured, CGFNS will issue the report.

WHAT CONGRESS MIGHT DO IN 2012

There are several business immigration legislative initiatives that were proposed in Congress in late 2011. Whether some of these will be signed into law is an open question.

The US Senate presently is the tougher of the two chambers of the US Congress. The Senate is split half: there are 51 Democrats and 47 Republicans (and two Independents, who tend to vote with the Democrats). Because of the Senate’s procedural machinations, any single Senator can delay any bill by placing a “hold” on a bill.

The US House of Representatives is overwhelmingly Republican, 242-192. This allows bills to move much quicker through the House, provided that the Republican leadership is in favor of the bill.

For several years gridlock in the “do-nothing” Congresses has forestalled any meaningful immigration legislation. There are three bills that had action taking on them in December. While the odds are against these bills passing are long, they represent the best chance of positive immigration legislation in the first quarter of 2012. They also represent the best chance for positive immigration legislation in several years.

HR 3012 – The Fairness For High-Skilled Immigrants Act. This bill seeks to eliminate the individual per-country numerical quotas that exist in the allocation of employment-based green cards. The per-country restrictions would be eliminated over three years. The House passed the bill in November. The Senate seemed poised to pass the bill, until Sen. Grassley (R-IA) placed a hold on the bill in December. Sen. Grassley seeks to include several other amendments to the bill, all of which seem aimed at creating a more restrictive business immigration environment. Sen. Grassley’s history suggests that the chances of this bill passing are low unless he can be appeased.

S. 2005 - Irish Recognition and Encouragement Act of 2011. The IRE Act authorizes the Secretary of State to issue up to 10,500 E-3 visas per year to Irish nationals. In the last few years several “trade” visa programs have exempted special classes of nonimmigrants from the usual visa quotas and process. Since the middle part of the last decade, trade visa programs have been carved out for nationals of Chile, Singapore, and Australia. The IRE Act is being pushed by Sen. Brown (R-MA). Massachusetts traditionally is a strong-hold for pro-Irish immigration measures. Sen. Brown’s predecessor, the late Sen. Ted Kennedy (D-MA), had long championed Irish visa programs. With Sen. Brown facing a tough campaign, he may use this bill to curry favor with his deep cadre of pro-Irish constituents.

S. 1986 - STEM Visa Act of 2011 (S. 1986). This bill was introduced just before Congress began its latest holiday. A version of the STEM Act repeatedly has been introduced in several prior Congresses. While the STEM Act would be good for America and great for American business, the STEM Act has failed to gain traction in the past and is not expected to do so in this Congress.

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