B-1 IN LIEU OF H-1

Applicants for H-1B visas can sometimes use the B-1 visa as a substitute to enter the US and perform typical H‐1B services. This little-known category can be helpful when the H-1B cap has been reached. The "B-1 in Lieu of H-1" is not without its critics. Some IT companies have been accused of using the "B-1 in Lieu of H-1" to circumvent visa law. In April, Sen. Grassley called for a "thorough review" of the "B-1 in Lieu H-1" program.

In response The Department of State recently reiterated the standard for the "B-1 in Lieu of H-1". It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad.

The applicant must: (1) work for a U.S. business enterprise that has a separate foreign business enterprise; (2) the salary paid by such foreign entity should not be considered as coming from a 'U.S. source'; (3) in order for an employer to be considered a 'foreign firm' the entity must have an office abroad and its payroll must be disbursed abroad.

To qualify for a B‐1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee's salary, and the source of the employee's salary must be abroad. The applicant must also meet the usual non-immigrant requirement incumbent in all B-1 applications.

A BETTER PHASE-IN PLAN FOR HR 3012

As we mentioned in an earlier blog post this week, the viability of HR3012 hangs in the balance. Congress will work until August 4 and then take a month off. The legislative calendar has some openings in September, although many Senators and Representatives focus will be on their own re-election campaigns and supporting other’s re-election efforts. The close Presidential campaign also means that much political momentum will be drawn away from immigration legislation and toward President Obama and challenger Mitt Romney.

Several comments to this blog have raised the very fair question of why Congress chose to pinch immigrant visa numbers away from the Rest of World in order to equalize the Employment Based categories. It’s a very fair point that has been made. HR 3012’s effect will be to delay EB2 and EB3 visa numbers for non-Indian and non-Chinese natives. It is unclear at this time what it means for Philippine natives, although the best guess is that Philippine EB3 will also be hurt by HR3012’s enactment.

MU Law’s position is that this is unfair and that solving one unfair policy (retrogression dates determined by birth) by creating another unfair policy (delaying approval for scores of applicants who have played by the rules) is wrong. The correct thing to do would be for Congress to guarantee reasonable processing times for all EB-2 and EB-3 visa applicants who presently have approved I-140s.

One way to do this would be to create a better phase-in plan than the current three year phase-in plan. HR’3012’s three year phase-in gradually raises the per-country caps until all EB applications are in the same retrogression schedule. The math on the phase-in is complex. It is nearly impossible to guess where the EB-3 priority dates will eventually settle if HR 3012 becomes law. Adding to the complexity is the real-world fact that no-one, including the Department of State, knows how many of those pending EB-3 applications are still viable.

A better plan would guarantee all EB-2 and EB-3 applicants that their retrogression would not increase as a result of HR 3012. So for instance if a ROW EB-3 has a priority date of September 2008 on the day that HR3012 becomes law, and the ROW Visa Bulletin is September 2006, then that applicant would be guaranteed a green card two years from the date of the enactment of HR3012. This plan would be simple to institute and could be crafted in a way as to not increase visa numbers.

Unfortunately, Congress has chosen to use the three year phase-in, which is more complex and ultimately serves neither constituency. It’s neither fair, nor easily applied.

SEN. "BIG GOVERNMENT" GRASSLEY

Sen. Grassley (R-IA) has released his “hold” on HR 3012. HR 3012 has many components to it. It notably calls for an elimination of “per-country” immigrant visa (Green card) caps, which historically have limited the amount of employment-based green cards from any one country to seven percent of the total immigrant visa total. These per-country caps have created a longer processing time for those from high visa-demand countries such as India, China, and to some extent, the Philippines. These per-country caps have been based not on the skill-level of the immigrant, but on the immigrant's country of birth. It seems unlikely that such a policy would ever be passed today. Congress is right to get rid of them.

That having been said, HR 3012 comes with some warts, mainly as a result of a necessary deal with Sen. Grassley (R-IA), who passionately believes that employment-based immigration is bad for America. Sen. Grassley's amendment gives broad, "big-government" power, to the Department of Labor. The DOL will be allowed to delay and deny Labor Condition Applications for the vaguest of reasons. Sen. Grassley's expansion of government oversight is intellectually inconsistent for a Senator who just last week found expansions of government oversight by the Food and Drug Adminsitration to be "shocking".

With the Senate's summer recess drawing near, whether HR 3012 moves forward is an open question, although still more likely to happen than not. There are rumors that several other Senators are concerned with Sen. Grassley's amendment and may delay or deny the bill's passage. This would be a shame because the bill's main purpose, elimination of per-country caps, is an admirable one.

HOW MANY VISAS ARE USED BY HEALTHCARE?

Answer: Not many, at least when compared to IT.

The DOL just has published its Factsheet: H-1B Temporary Visa Program - Selected Statistics, FY 2012 Year-To-Date and the paucity of Healthcare petitions is startling. The IT community uses the vast majority of H-1Bs. Eight of the Top 10 occupations are IT jobs. All ten of the largest H-1B employers are IT -related companies. So how many H-1Bs are used by Physical Therapists, Occupational Therapists and other healthcare occupations? Unfortunately the DOL does not expand beyond their Top 10 lists.

The Permanent Residency data is a bit more forthcoming. At six percent of the overall total, "Healthcare Practitioners & Technical" was the fifth greatest occupational classification in terms of approved Labor Certifications. Six percent was 2,100 approved Labor Certifications and includes Registered Nurses, Physical Therapists, Occupational Therapists and about one hundred other jobs. These numbers still pale in comparison to "Computer/Math," which makes up 54% (18,800) of all approved Labor Certifications.

EXPEDITED CES AT CGFNS

CGFNS has just announced that it now offers an Expedited Review Service for their Credentials Evaluation Service (CES) Academic Reports. The Expedited Review Service has a ten-day review period, provided that CGFNS is in possession of all of the applicant's documentation.

If any documents are missing, CGFNS will notify the applicant of any missing document within the ten day period. Once the missing documents are provided to CGFNS the ten-day clock will start anew. The fee for this Service is $175 if the Expedited Review Service is selected at the time of the initiation of the application. Existing application may be upgraded to the Expedited Review Service for a fee of $275 ($100 more than if the selection is made at the application's initiation). These fees are in addition to the usual CGFNS processing fees.

AUGUST 2012 VISA BULLETIN

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

This Visa Bulletin contains no surprises. EB-2 China and India remain Unavailable and will remain Unavailable until the October 2012 Visa Bulletin, which is the first one of US Fiscal Year 2013. The conventional wisdom is that the EB-2 China and India dates will leap ahead, although how far ahead remains to be seen.

The EB-3 categories had their usual slow but steady progress in the August Bulletin, a pace that is expected to remain for the foreseeable future.

August 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	01JAN09	U	U	01JAN09
EB-3	08SEPT06	08NOV05	01OCT02	15JUN06

PNAA ANNUAL CONVENTION

The Philipine Nurses Association of America holds their 33rd Annual Convention this week in San Antonio. The mission of the PNAA is to uphold the positive image and welfare of its constituent members; promote professional excellence and contribute to significant outcomes to healthcare and society. Over their long history, the PNAA has accomplished their goals. With events such as the Annual Convention, they continue to make an enormous contribution to American healthcare excellence. Musillo Unkenholt congratulates the PNAA on another successful year.

EB2 WILL BE CURRENT OCTOBER 1, 2012

The Department of State’s Visa Office head Charlie Oppenheim met with the American Immigration Lawyers Association on June 19, 2012 to discuss the recent retrogression of EB-2 dates in All Other Countries, including the Philippines. Mr. Oppenheim has confirmed that he expects that the All Other Countries EB2 date will return to Current on October 1, 2012, which is the beginning of US Fiscal Year 2013.

Readers should note that the All Other EB-2 date shortly will become Unavailable. This will not impact the Current date on October 1, 2012.

Mr. Oppenheim also confirmed that EB-2 China and India will be August/September 2007 on October 1, 2012. He expects that the India and China EB-2 dates will remain in 2007 for the first several months of FY 2013.

US v. ARIZONA: WHAT DOES IT MEAN FOR EMPLOYERS AND EMPLOYEES?

On Monday,the Supreme Court of the US (SCOTUS) released its long-anticipated decision in Arizona v. US.The state of Arizona had sought to usurp the federal government’s authority toregulate immigration. SCOTUS largely declawed Arizona’s wildcat attempts.

As a resultof this decision, MU suggests that foreign nationals in Arizona should carrydriver’s licenses. SCOTUS specificallysaid that drivers licenses are valid proof of lawful status. If you do notdrive, you should contact your local Bureau of Motor Vehicles, which can issueyou a state identification non-driving license.

If you reside in other states where Arizona-style laws have been enacted, such as Iowa, Alabama,and Utah, you are also encouraged to get a driver’s license or state-issuedidentification. If your driver's licensehas expired and has not yet been renewed, please carry your I-797 Notice ofAction (Approval Notice) and/or Receipt Notice.

Foreignnationals are reminded that they are required to carry validpassports while in the US.

All of Arizona’s attempts to regulate immigration were struck down,save one. For employers and employees living and working in Arizona these arethe key points:

• Arizona cannot create its own state-based crime of “illegally working”. Only the federal government can create a crime of “illegally working”. And the federal government has. Of course, all US employers – Arizona and elsewhere – must comply with the Form I-9 rules.

• Arizona police officials cannot randomly stop and ask immigrants for papers. This is an important point and one that has not been well-articulated in the media.

• In order for an Arizona police officer to ask to see their immigration documents, the police officer must have first have a reasonable suspicion that the person is illegal in the US. That suspicion cannot be based on their race, color of their skin, or their country of their birth. A reasonable suspicion may exist if, for instance, the police officer is tipped off by a credible informant that someone is illegally living/working in Arizona.

Arizona v. US has several other applications that areinteresting, although not directly related to employment:

• SCOTUS has confirmed that immigration is a federal legal area. This likely will tamp down various state efforts to regulate immigrant employment.

• Arizona officials are no longer allowed to create their own Arizona alien registration system, even if it is based on the federal system. Only the federal government can create and regulate a federal alien registration system.

• SCOTUS spent a lot of time on the immigration documents section. SCOTUS indicated that it would not tolerate future Arizona police officers who abused their power and based their suspicions on race, skin color, and origin. If there is abuse by Arizona police officers in the future, SCOTUS may bar Arizona officers from having the right to ever ask for immigration documents.

EB2 FOR THE PHYSICAL THERAPIST

The USCIS has been wildly inconsistent in adjudicating petitions for EB-2 Physical Therapists. But they should not be. The law is straightforward.

If the position requires an Advanced Degree, then EB-2 Petition should be approved. An Advanced Degree is a US Master’s Degree, the foreign equivalent of a US Master Degree, or a Bachelors Degree and five years of progressive work experience.

If the FCCPT or another credible educational evaluator finds that the Beneficiary’s foreign education is equal to a US Masters Degree, then the EB-2 Petition should be approved, since all US employers effectively require an Advanced degree as their minimum requirement for entry into the petition.

Many foreign schools issue a diploma that says “Bachelors Degree in Physical Therapy”. Many of these degree are, in fact, equal to US Masters Degrees and therefore approvable as EB-2 Petitions.

Unfortunately, the USCIS Texas Service Center has a training issue and some USCIS officers are denying these approvable EB-2 Petitions. Their flawed analysis is that since the degree is titled Bachelors Degree, the petition is inappropriate as an EB-2. This is wrong. The legal question isn’t the title of the degree but the US educational equivalence.

The most frustrating part of Physical Therapy EB-2 Petitions is the maddening inconsistency caused by the USCIS training issue. Virtually identical petitions will get different USCIS Decision: some denied and some approved. MU Law has several of these petitions on appeal and we are working with AILA to remedy this flawed training problem.

For now, the safer approach is to use the Bachelors Degree plus five years’ experience path to a Physical Therapist EB-2 Petition.

EB-2 RETROGRESSION FAQ

Many MU clients are perplexed by the announced July 1 retrogression of the EB-2 visa category. In this blog post, we will address some common questions that we have seen. If you have additional ones that you would like to see addressed, please post your questions as a comment or ask the question on the MU Facebook page.

CAN I FILE MY I-485, ADJUSTMENT OF STATUS PRIOR TO JULY 1?

In most instances, yes. I-485, Adjustments of Status may be filed for EB-2 petitions prior to July 1. Please let us know if you wish to do so. Any I-140 that has been approved or is currently pending qualifies. Because of the inconsistent decision-making by USCIS for EB-2 Masters-equivalent petitions, we may advise against it in any one case. We will be addressing this inconsistency in an upcoming blog posting.

HOW LONG WILL THIS RETROGRESSION LAST?

Our sense is that the retrogression will only last until October 1, 2012, at which point the new US fiscal year begins and more visas are allowed to be processed. What remains unknown is whether the retrogression will reappear in the fall of 2012. This will not be known until the Department of State assess just how great the demand is for EB-2 visas.

SHOULD I UPGRADE MY I-140 TO PREMIUM PROCESSING?

Probably not. An upgrade to premium processing is expensive ($1,225) and only guarantees that the USCIS will review your I-140 in 15 days, which takes us beyond the July 1 retrogression date.

CAN I FILE MY I-485 BUT NOT FILE MY SPOUSE/CHILDREN’S I-485?

Yes, these can be filed separately. Some applicants may want to just file their I-485 Adjustments of Status and then file their spouse/children’s I-485 Adjustments of Status at a later date. The spouse/children’s priority date must be current at the time that you desire to file their I-485.

JULY 2012 VISA BULLETIN AND THE FUTURE OF EB-2

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

In the June Visa Bulletin, the Department of State made the India and China EB-2 categories unavailable (indicated by a "U", in the chart below), as had been expected for some time. Now, the DOS has made the All Other and Philippine EB-2 categories retrogressed to January 1, 2009. Plainly the Department of State and the USCIS are having troubling anticipating demand for visa numbers, which is leading to these enormous swings in visa dates.

July 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	01JAN09	U	U	01JAN09
EB-3	22JUL06	22SEP05	22SEP02	08JUN06

So what will happen in future months to EB-2. MU Law believes that the EB-2 will continue to be retrogressed until October 1, 2012. The August or September 2012 Visa Bulletin likely will become unavailable at some point, although it should be temporarily.

Come October 2012, MU Law expects that All Other EB-2 (including the Philippines) will become Current, or nearly Current. October 1, 2012 is the start of the next US Fiscal Year and more immigrant visas are available for processing. The NVC may continue to process EB-2 petitions in the later summer, anticipating more favorable dates in the fall.

If you have an immigrant visa interview through June 30, you should continue to attend that interview, and you will be given a visa provided that you qualify and pass the interview process.

AILA WEEK

MU attorneys Chris Musillo, Cindy Unkenholt, and Maria Schneider will heading to Nashville for this year's AILA Annual Convention. AILA Annual is a great time to catch up with old friends, meet new ones, and discuss interesting case strategies. We may be posting light this week, but we will surely update once the H-1B cap officially is reached. Our sense is that it either has already been reached or it will be reached early this week.

H-1B CAP COUNT: 55,600

The H-1B cap count is now at 55,600 H-1B cap-subject petitions have been received as of June 1, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 8.

MU clients are encouraged to initiate their H-1B Petitions immediately in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

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

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	55,600	6/1/2012	6/8/2012
US Masters	20,000	18,700	6/1/2012	6/8/2012

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H-1B CAP COUNT: 48,400

The H-1B cap count is now at 48,400 H-1B cap-subject petitions have been received as of May, 25, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 13.

MU clients are encouraged to initiate their H-1B Petitions immediately in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

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

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	48,400	5/25/2012	6/13/2012
US Masters	20,000	17,500	5/25/2012	6/6/2012

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PUSH IN CONGRESS TO INCREASE BUSINESS GREEN CARDS

Quietly there has been a recent push in Congress to increase the amount of business based green cards.  Several different proposals are being considered.  Most will reduce the lengthy green card processing times for healthcare, IT, engineering, and other business-based green cards.  Business based green cards currently take anywhere from one year to ten years, depending on the type of job offered (EB1, EB2, EB3, etc.) and the country of birth of the applicant.  

As Computerworld explains, many of the proposals call for immediate or near-immediate green cards for foreign students who earn a master's degree and above in science, technology, engineering and math (STEM degrees).  The proposals differ in allocation of these visas.  One proposal by Sens. Alexander (R-TN) and Coons (D-DE) allows US STEM graduates to file for green cards after three years of working in the US.  As can be seen by the co-sponsors, this bill has bi-partisan support.

A  bill by Sen. Cornyn (R-TX) eliminates the diversity visa lottery and reserves those visas for US STEM graduates.  Sen. Cornyn's bill has some appeal because it does not add to the total pool of visas, which is major issue for some in Congress.

While these bills target non-healthcare occupations, both bills are expected to help healthcare, in several ways.  First, the language of the bills may still be tweaked to add in some healthcare occupations that are in short supply.   Second, the proposals may allow US government agencies to add or delete occupations as future events warrant.  

Even if no specific healthcare-friendly amendments are added to these bills, the simple process of drawing out thousands of STEM visas out of the general green card pools will reduce retrogression pressures.

FREE SUBSCRIPTION OF AMERICAN NURSE TODAY FOR FENs

CGFNS and the American Nurses Association have entered into an agreement to provide new foreign-educated nurses with a complimentary digital subscription to the ANA's signature publication, American Nurse Today. CGFNS believes that the subscription will allow foreign-educated nurses to learn about the practices and challenges facing nurses in the US. To register for your complimentary subscription, please visit the CGFNS webpage.

H-1B CAP COUNT: 42,000

The H-1B cap count has passed the halfway mark. 42,000 H-1B cap-subject petitions have been received as of May, 11, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 8.

MU clients are encouraged to initiate their H-1B Petitions by May 25 in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

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

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	42,000	5/18/2012	6/8/2012
US Masters	20,000	16,000	5/18/2012	6/1/2012

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AILA ANNUAL DINNER

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Last year we had about 20 of us and it was great to catch up with old friends (and new ones!). It is a laid-back casual event.

If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by May 25. Friends, spouses, etc. are also welcome.

H-1B CAP COUNT: 36,700

The H-1B cap count has passed the halfway mark. 36,700 H-1B cap-subject petitions have been received as of May, 11, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 10.

MU clients are encouraged to initiate their H-1B Petitions by May 25 in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

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

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	36,700	5/11/2012	6/10/2012
US Masters	20,000	14,800	5/11/2012	6/1/2012

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