Visa Bulletin Starts to Slowly Move

The January 2010 Visa Bulletin (released in mid-December 2009) contained information that explained the methodology behind the DOS’ VB. Going further, the DOS predicted expected progression of VB dates throughout Fiscal Year 2010. That process appears to be starting with the just-released February 2010 VB. Fiscal Year 2010 runs from October 1, 2009 through September 30, 2010.

The VB dates in February will be:

EB1: all current
EB2: all current, except China (22May05) and India (22Jan05)

EB3: all 22SEPT02, except India (22Jun01) and Mexico (22Jul02)

The EB2 category had a slight movement in China, none in India. This is consistent with the January 2010 VB. The EB3 category had 6 week improvement in all categories, except India and Mexico. These progressions are less than one might have expected, but not so much so that there should be any cause for doubting the earlier DOS projections.

The January VB projections for EOY FY-2010 cut-off dates were:

EB2:
China: July - October 2005
India: February - early March 2005

EB3:
Worldwide: April - August 2005
China: June - September 2003
India: January - February 2002
Mexico: January - June 2004
Philippines: April - August 2005

The Next Decade's Jobs

Where are the next decade’s American jobs? The answer is undoubtedly healthcare. Four of the next decade’s top 10 occupations with the largest growth are in health care, according to a Bureau of Labor Statistics study reported by National Public Radio.

Leading the pack is Registered Nursing. The US economy expects to demand over a half million RNs (22%) in the next ten years, at an average salary over $60,000 per year. Immigration traditionally has been used to fill obvious US supply shortages. Americans opinions on immigration differ, but after looking at the objective employment numbers, liberalized immigration for healthcare workers ought to be something everyone can agree on.

CHC Healthcare votes as a condition for CIR?

In his first year, President Obama's most significant domestic agenda item has been the development and enactment of a Healthcare bill. The Healthcare bill, which was first floated in the summer, has been plagued by delays and Congressional holdouts. Recently, it has begun to take shape and both houses of Congress have readied their bills. Many pundits expect that the Healthcare bill will be passed and signed by President Obama in the next month or so.

There are a few hurdles before enactment. Each chamber of the US legislative branch -- the Senate and House – have different versions of the Healthcare bill. US law says that the discrepancies have to be remedied through a process called Conference. The Conference committee ordinarily consists of leaders in the Senate and House. These leaders hammer out a compromise bill and then offer the remedied bill to their respective chambers.

Each chamber of Congress then brings the compromise bill up for a vote. Ordinarily, the vote is a formality since each party and each chambers’ leadership teams obtain approval from all concerned in advance of the vote.

This series of give and take negotiations provides an opportunity for certain politicians. A January 4, 2010 report published on Talking Points Memo says that the Congressional Hispanic Caucus (CHC) is conditioning their support for the Healthcare bill. The condition is that the White House takes up CIR this year.

Rep. Gutierrez, who introduced CIR ASAP in December, heads the CHC. His CIR ASAP contains many measures that are friendly to the immigration of healthcare professionals.

CGFNS Prices Increase

CGFNS announced a new pricing structure for its core services and several ancillary services effective January 1, 2010.

The new fee structure includes increases to almost all programs. Included in the price increase are Applications for the Certification Program, the Credentials Evaluation Service, the Visa Credentials Assessment program, the Credential Verification Service for New York State and other ancillary services.

The standard Visa Screen price increases to $540, from $498. The renewal Certificate price is increasing from $250 to $275.

H-1 Cap Has Been Reached

The H-1 cap has been reached. As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

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.

Holiday Reading

CIR ASAP (HR 4321) has been published. I have uploaded a copy of it to my docstoc page. Please feel free to download, share, print out, or otherwise distribute. At 640+ pages, it is lengthy.

The Library of Congress’ Thomas database has a hyperlinked version that is better to use if you’re just trying to focus on any one section. The important sections for Healthcare immigration are Chapter I, Title III.

Sec. 301 – Recaptures past unused visa numbers
Sec. 302 – Exempts LPR dependents from the IV quotas.
Sec. 303 – Slightly increases the per country quotas.
Sec. 320 – Provides IV cap exemptions for certain STEM and shortage occupations
Sec. 321 – Allows those with pending IVs to file Adjustment of Status even if their priority date is not current.

Happy Holiday reading!

Summary of CIR ASAP

Both Reform For America and the Immigration Policy Center have summarized CIR ASAP. According to the IPC summary, the ENSRA has been included in CIR ASAP. This means that nursing petitions will be exempt from the Immigrant Visa numbers, which is the legislation that groups such as the AAIHR have been pushing all along.

Here are the other highlights for Healthcare workers and Employers:

- Recapture of all Immigrant Visas (Family & Employment) from 1998-2008. Unfortunately this does not include the largest numbers from the 1990s; (UPDATE- The IPC summary says that the recapture is 1992-2008, which makes more sense and is better)

- STEM occupations exempt from the Immigrant Visa numbers.

- Immediate relatives exempt from Immigrant Visas quotas (this could be enormous and would be responsible for slicing the immigrant visa retrogression backlogs);

- Increases the per country visa cap, thus ameliorating the Indian, Chinese, and Mexican retrogressions;

- Spouses and Children of LPRs are Immediate Relatives and therefore IV quota-free;

- Employers have affirmative obligation to report recruiters working on their behalf and can be held liable for the crimes of the recruiter;

- Before an employer can hire an H-1B worker, the employer must meet strict requirements for the recruitment of American workers. This would also likely help Healthcare Petitions since the Healthcare staffing shortages are well-documented.

Updated from prior posting.

The CIR Battle Begins

On Tuesday, Rep. Luis Gutierrez will unveil his version of Comprehensive Immigration Reform, which he calls CIR ASAP (Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009). CIR ASAP immediately has 10+ co-sponsors.

Rep. Gutierrez has long been a pro-immigration stalwart. The initial version of CIR ASAP is likely more liberal than any future bill. The initial list of co-sponsors does not include any Republican members of Congress.

It will be interesting to see if the Obama Administration comments on CIR ASAP or whether they wait for the Senate version of the bill to weigh in. It is assumed that Sen. Schumer’s office has been working on a tamer version of CIR.

Once CIR ASAP is published, I will review it for impact on Healthcare occupations. CIR ASAP comes on the heels of an impressive study by the Immigration Policy Center that highlights the critical role immigrants play on US healthcare.

The Most Important Visa Bulletin Ever

The January 2010 Visa Bulletin has just been released and it is the most important Visa Bulletin ever released. For the first time, the Department of State has projected future months’ visa numbers.

Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are:

EB2:
China: July through October 2005
India: February through early March 2005

EB3:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005


FY2010 runs until September 30, 2010. Based on these projections, EB3 priority dates should move to mid-2005 by the end of FY-2010. This means that there is a five year processing time for EB3 professions, such as most nursing positions. This is a horrendous processing time. Congress plainly has to enact positive legislation aimed at progressing processing times for shortage occupations such as nursing.

The consolation is that intending immigrants can now plan for when their immigrant visa number will come. Those with EB3 priority dates beyond Summer 2005 should not expect their IV appointment in 2010. Charlie Oppenheim and the Visa Bulletin team deserve credit for producing these estimates. The fault for the long retrogression is with Congress, not with the DOS.

The Visa Bulletin also contains an explanation of the visa number calculation that is required reading for anyone interested in immigrant visa allocation.

H-1 Cap at 61,500 (12/8 Update)

As of December 8, 2009, there are approximately 3,000 H-1Bs still available, which is when the USCIS last updated their page. MU is predicting that the H-1B cap will be reached by next week. Accordingly all MU clients are encouraged to send us their H-1B cap-subject filings ASAP.

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.

Many healthcare professions ordinarily qualify for H-1(b) status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing jobs.

From USCIS:

As of December 8, 2009, approximately 61,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The DOL Takes One Step Forward, Two Steps Back

The US Department of Labor (DOL) is about to roll out a new Prevailing Wage Determination (PWD) system that centralizes the process. Unfortunately, the DOL is unable to process electronic forms or even faxes. The new process calls for employers to mail in the PWD to the central office. The new regulation, which goes into effect on January 1, 2010, is available on-line.

The PWD is a mandatory part of the immigrant visa process (permanent residency or green card). While employers must still pay a prevailing wage in the nonimmigrant process (e.g. H-1B), it is not a mandatory part of the nonimmigrant process; employers are afforded safe harbor benefits by using the PWD process in nonimmigrant matters.

The present PWD process is straightforward. Employers (or their attorneys) file a PWD with the State Workforce Agency (SWA) that controls the worksite. This has not been ideal. Different states have different processing times, different forms, and different processes. For many years the DOL has contemplated a centralized program.

PWDs will be submitted directly to the new National Prevailing Wage and Helpdesk Center (NPWHC) in Washington D.C. starting January 1, 2010. This should improve the process by adding consistency and uniformity.

The new PWD is the Form ETA-9141, the Application for Prevailing Wage Determination. The PWD must be sent by mail or delivery service to: U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn: PWD Request; 1341 G Street, NW., Suite 201, Washington, DC 20005- 3142.

The DOL indicated that it is developing an on-line PWD, but it did not commit to a date when the on-line PWD will be available. It is expected that until the on-line Form is ready, the PWD process will slow, perhaps quite considerably if past history is any guide. This is especially disheartening for green card cases, whose processing times have dramatically risen in recent years.

H-1B Cap Running Out

The latest H-1B cap numbers show yet another dramatic uptick in filings. There are approximately 6,000 H-1Bs still available as of November 27, which is when the USCIS last updated their page.

MU is predicting that the H-1B cap will be reached in the next 2 weeks, perhaps sooner. Accordingly all MU clients are encouraged to send us their H-1B cap-subject filings ASAP.

USCIS is allowed to approve 65,000 H-1B visas, but they have to withhold 6,800 visas for the special Singapore and Chile H-1B1 visas. This leaves 58,200 H-1B visas

USCIS then adds back any unused Singapore and Chile H-1B1 visas. In most years, this is 6,500+ visas. In other words there are only a few hundred Singapore/Chile H-1B1s used every year. So then we add 57,800 + 6,500 and this means that the actual H-1B cap is around 64,000 H-1Bs.

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.

Many healthcare professions ordinarily qualify for H-1(b) status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing jobs.

From USCIS:

As of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

CGFNS Reauthorized

CGFNS was reauthorized by the Department of Homeland Security to issue Visa Screens and Healthcare Worker Certificates, effective November 19, 2009. The reissuance is valid for seven years and covers all seven occupations covered under INA 212(a)(5)(C). The seven occupations are: registered and licensed vocational nurses, physical therapists, speech language pathologists, audiologists, medical technologists, medical technicians, occupational therapists, and physicians assistants.

The full press release is available on CGFNS’ website.

H-1B Cap at 56,900

The H-1B cap of 65,000 may be reached before the end of the year. Historically, H-1B cap-subject cap filings have increased as we have gotten closer to the H-1B cap limit. MU employers are encouraged to ready any H-1B cap-subject as soon as possible.

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.

Many healthcare professions ordinarily qualify for H-1(b) status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing jobs.

From USCIS:

As of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

End of the H-1C

On December 20, 2009, the H-1C Nursing Relief for Disadvantaged Areas visa program will expire unless Congress takes further action. All H-1C petitions must be filed before the December 20, 2009 expiration. At this point, it is unexpected that Congress will take the necessary action. The program was first authorized in 1999 and was last reauthorized in 2006. The H-1C is an H-1B-like visa program specifically for Registered Nurses.

While the H-1C program could be an excellent visa option for some, legacy regulation and interpretation has limited the application of the H-1C to just 14 facilities in the United States. While the H-1C expiration may be devastating for these 14 facilities, it will have no effect on any other facilities in the United States.

Embracing Sec. Napolitano's Message

Last week DHS Secretary Napolitano implied that immigration reform is the next challenge that the administration will tackle. The Secretary’s vision of Comprehensive Immigration Reform is a “three legged stool,” where the three legs are:

- a commitment to serious and effective enforcement;
- improved legal flows for families and workers; and
- a firm but fair way to deal with those who are already here.

It is the second leg of the chair that appeals to those interested in liberalized Schedule A visa numbers. A law such as HR 2536 will allow for a steady flow of internationally trained nurses and physical therapists and also compel the recruitment community to fund domestic nurse education programs through additional filing fees for visas.

The popular press is beginning to pick up on Sec. Napolitano’s message. In the last few days, I have seen these stories and editorials:

New York Times: Their Future Is Ours

Washington Times: Will Democrats Err in Immigration Reforms?

WSJ: Immigration Reform is back on the table (confirms that Sen. Schumer’s office is working on producing a “firm but fair bill”)

Dallas Morning News: Time hasn't made immigration reform easier

Newsweek: Rosier Prospects for Immigration Reform

McClatchy: Immigration Reform is Long Overdue

All of the editorials and articles focus on the third leg: a firm but fair way to deal with those who are already here. That aim is important. But the failings of the Immigration and Reform Control Act (IRCA) of 1986 were that it failed to deal with the immigration problems on an on-going basis. IRCA solved the problems of the past, but did nothing to solve the problems of the future.

Toward that end, Sen. Schumer and his staff reportedly are also rewriting part of the Immigration and Nationality Act to provide for improved worker flows, including perhaps a progressive nurse visa policy in line with HR 2536. Legislators and the media should keep in mind that the stool has three legs.

DHS Secretary says Obama "Fully Committed" to CIR

Regular readers of this blog know that the best chance for liberalization of Schedule A visas – registered nurses and physical therapists -- is for the language of HR 2536 to be folded into next year’s Comprehensive Immigration Reform. Sen. Schumer has taken the lead on this issue and is rumored to be working on a CIR bill.

Nevertheless there has been some skepticism about whether CIR will ever be introduced. Some, like Rep. Gutierrez are getting anxious.

This week we saw the best indication that CIR is still on schedule. In prepared remarks to the Center for American Progress, DHS Secretary Napolitano said,

“the President continues to be fully committed to reforming our immigration laws, and why he asked me to take a lead role in this effort.”

Sec. Napolitano’s plan calls for a “three-legged stool”. She continued,

“Let me be clear: when I talk about “immigration reform,” I’m referring to what I call the “three-legged stool” that includes a commitment to serious and effective enforcement, improved legal flows for families and workers, and a firm but fair way to deal with those who are already here.”

Legal changes to employment-based immigration, including improved legal flows for workers, is the only way that Schedule A visa reform can happen. We’ve seen a few indications that CIR is still set to move early next year. The Secretary’s remarks are the clearest indicated yet.

December 2009 Visa Bulletin

At some point MU expects that the Visa Bulletin numbers will progress in a meaningful way, but this month is not the month.

The December 2009 Visa Bulletin has no change in any Employment Based Visa Category, except for a slight uptick in India EB3. In the November 2009 Visa Bulletin showed 22APR01. It moved a week.

EB1: All Current
EB2: All Current, except China (01APR05) and India (22JAN05)
EB3: All 01JUN02, except India (01May01).

The one silver lining may be that, unlike in November 2009, the December 2009 did not include an explanation in the bulletin for the lack of progression in the dates. Here is November’s explanation:

E. EMPLOYMENT PREFERENCE VISA AVAILABILITY
The receipt of demand from Citizenship and Immigration Services Offices has far exceeded their earlier indications of cases eligible for immediate processing. As a result, it has been necessary to hold most of the Employment cut-off dates for November. At this time, it is not possible to provide any estimates regarding future cut-off date movements.

Increasing demand for Advance Practice Nurses

The NY Times Prescriptions blog is an excellent source for information on the Healthcare debate that is raging in the US. Congress and the President presently are debating who will qualify for health issuance, how the insurance will be funded, and how health services will be delivered.

Today’s Prescriptions’ post highlights that Nurse Practitioners will surely be a growing field in the US. As noted in the NYT blog, “the American Academy of Family Practitioners projects a shortfall of 40,000 physician generalists — family practitioners, pediatricians, general internists and geriatricians — by 2020, even without significant changes to the current health care system.” Other graduate level nursing education is also likely to be in greater demand in the next decade.

Because of this demand, and because of the relatively easy H-1B nonimmigrant visa option for Advance Practice Nurses, the safest path to US immigration is to obtain Advance Practice Certification. For staffing companies and recruiters, Advance Practice Nursing is the next need.

H-1B Cap at 53,800

The H-1B Petition is still a valid option for many healthcare workers including PTs, OTs, SLPs, Pharmacists and some nurses. Seven months into this term’s fiscal year quota, the H-1B cap has not been reached. But that may not be the case for long.

The USCIS has reported a jump in cap-subject approvals in October. As of October 30, 2009, approximately 53,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed. The Masters quota cap effectively has been reached, although a few “extra” numbers may be released if the USCIS denies some pending Masters cap-subject cases.

Going forward, any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Also, the USCIS just has announced that it will continue to accept the old Form G-28.