English testing waived for certain Visa Screen renewals

CGFNS recently announced that renewal applicants do not have to take another approved English exam for renewal of their Visa Screen certificate if they have been employed in the US for at least 27–36 months — including nine months of the year before the date an applicant submits the renewal application. Applicants will need to have their employer submit an employment summary on corporate letterhead with the appropriate signature for the English requirement to be waived.

April 2010 Visa Bulletin

The Department of State has just released the April 2010 Visa Bulletin. The relevant dates are:

EB1 – all current
EB2 – all current, except China (22 AUG 05) and India (1 FEB 05)
EB3 – all 01 FEB 03, except India (08 SEP 01) and Mexico (01 JUL 02)

This is modest progress from last month’s Visa Bulletin for All Other EB3 Applications. All Other EB3 has increased 3 months since March 2010 and 6 months since February 2010, when it was 22 SEP 2002. India EB3 has also improved from 22 JUN 2001 since February’s Visa Bulletin.

Oddly Timed H-1C Regulations

The Department of Labor has just released final H-1C regulations. The timing of the release is odd in light of the fact that the H-1C program expired on December 20, 2009.

The purpose of the late publication of the regulations is “to ensure worker protections are in place for those nurses currently employed in H-1C status, whose stays may extend beyond December 20, 2009.” Some H-1C nurses are still authorized to work in the US, although that number is shrinking with each day; extensions are no longer approvable with the H-1C program’s expiration.

The Background Information to the regulation includes a lengthy history of the H-1C program. Originally, the H-1C program was conceived as nonimmigrant solution to the nursing shortage. The usual nonimmigrant professional program, the H-1B, has only limited application for registered nurses. But the limits on the H-1C program rendered it inert for all but fourteen hospitals in the US.

There does not seem to be a groundswell of support for a reenactment of the H-1C program, since the nursing shortages have lessened with the onset of the recession. Nevertheless, the H-1C program has been extended several times in the past. It remains to be seen whether the H-1C will rematerialize when the inevitable nursing staffing shortages reemerge.

Requirements for H-1B Petitions Involving Third Party Worksites

One of the requirements of the regulations pertaining to the filing of H-1B petitions is that the Employer “has an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” 8 C.F.R. 214.2(h)(4)(ii).

Historically, documentation of the ability to hire, pay and fire an Employee was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” which reflects the current position of the USCIS on this issue. In this Memorandum, the USCIS takes the position that Petitioner (Employer) control over the Beneficiary (Employee) is paramount. The Memorandum outlines a number of factors to be considered including:

· the method and manner of supervision
· whether the Petitioner provides any necessary tools or instrumentalities for the Beneficiary to perform the duties of employment
· whether the Petitioner has the ability to hire, pay and fire the Beneficiary
· whether the Petitioner evaluates the work-product of the Beneficiary
· whether the Petitioner provides employee benefits
· whether the Beneficiary utilizes any proprietary information of the Petitioner
· whether the Beneficiary produces an end-product directly linked to the Petitioner’s business
· whether the Petitioner has the ability to control the manner, means, and the work product of the Beneficiary

MU takes the position that the January 8, 2010 Memorandum issued by Donald Neufeld, Associate Director of the USCIS, and the resulting policies of the USCIS in adjudicating H-1B petitions are ultra vires. We have joined the multitude of voices calling for a complete retraction of the Memorandum. However, until such time as the Memorandum is withdrawn, we recommend that our clients be prepared to present documentation of an itinerary and the Employer-Employee relationship.

This post is an excerpt of a larger MU Visa Advisor article authored by Cindy Unkenholt that has been sent to clients of MU. The article includes specific recommendations on improving companies’ profiles so that the USCIS finds the Petitioner is a Consultancy and not a “job shop”. If you would like a copy of the article please email Cindy Unkenholt or Chris Musillo.

AHCA to Congress: Extend Cap Exemptions

With all the bluster on Capitol Hill about Healthcare Reform, the plan to include an extension to the Medicare part B therapy cap exceptions process fell apart last week with little fanfare. The exception rule expired on December 31, 2009.

Currently there is a annual cap totaling $1,860 per patient for Therapy services. In years past, the exception to the therapy cap for patients in dire need of therapy care was routinely extended. The exception was supposed to be included in last week’s Jobs bill, but it was shelved due to political machinations.

This is having a major negative impact on many healthcare providers and the patients that they treat. The therapy industry was devastated the last time the exception lapsed for a significant period of time in the late 1990s.

If you would like to take positive action to extend the Medicare part B therapy cap exceptions, please see the AHCA CapWiz page.

CES On-Line Only Starting March 1

Earlier this month, CGFNS launched their on-line CES reporting system. Starting on March 1, 2010, CES paper reports will no longer be mailed. Each individual report will be available for one year, after which it will no longer be available

On-line reporting will not be available to applicants who were issued a report before February 2, 2010. Applicants who are issued a report between February 2 and March 1 will receive a paper copy of the report in the mail and also be able to view and download their report online.

USCIS Neufeld Teleconference

The USCIS held a February 18 teleconference aimed at addressing the myriad of questions and rumors that have surfaced since the publication of the Neufeld Memorandum a few weeks ago. The Neufeld Memo purports to clarify USCIS policy on the legality of H-1B workers who are placed at third-party worksites. Several times on the call USCIS officials reiterated that the Memo is not new law, but merely an explanation of their current interpretation of law.

The attendees would have none of it. Dozens of immigration attorneys, including MU’s Chris Musillo spoke on the teleconference. A litany of criticisms was hurled at USCIS. Members of AILA and other industry trade groups also spoke up on the teleconference and condemned the Memo. The criticisms ranged from the surreptitious nature of the development of the Memorandum, to the absence of legal due process, to the unintended consequences in related areas of law, such as DOS immigration officials at airports misapplying this DHS Memorandum.

The loudest disapproval was directed at the underlying law supporting the Memorandum. MU contends – and many other immigration attorneys – that the Memorandum is simply not adequately grounded in law. For that reason many called on the USCIS to withdraw the Memorandum.

In the Memorandum, the USCIS found that existing law does not define “employer-employee” relationship. But this is wrong. Existing law does define an “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. The Neufeld Memorandum pays lip-service to these five factors and attempts to distinguish the “right to control” characteristic as a superior characteristic.

MU recently has had several H-1B's approved in spite of the Memorandum. That having been said, MU recently has seen a new “stock” RFE on a few of our client’s cases. At this point, it is unclear how USCIS officials will analyze H-1B third-party worksites in light of this new “stock” RFE and the Memorandum.

On the teleconference, USCIS announced that there would be a second teleconference. The date of the teleconference is not set at this time, but it is expected that the call will take place in early March.

PTs qualifying under the EB-2 Green Card

For many non-Indian and non-Chinese natives, the EB-2 Permanent Residency visa (green card) provides an fast and cost-effective alternative to the H-1B process. MU has successfully applied for the EB-2 for many Physical Therapists who have five years of progressive experience in occupation after the attainment of their Bachelors degree.

We now believe that we have a successful strategy for Physical Therapists who hold an FCCPT “first professional degree” evaluation, even if the Physical Therapist does not have five years of post-Bachelors degree progressive experience. If you are interested in having an MU attorney review your matter for applicability as an EB-2 Permanent Residency green card, please contact Chris Musillo or Cindy Unkenholt.

Schumer’s Future and the Senate Leadership Curse

In the recent past there has been no surer way to ingloriously leave the Senate than to be named leader of your party’s Senate delegation. This recent fate may soon fell Democrat and Majority Leader Sen. Harry Reid of Nevada. As Sen. Reid’s re-election chances continue to dim, Sen. Chuck Schumer's (D-NY) jockeying for the position could be the final nail in the coffin for CIR in 2010.

Since becoming Majority Leader, Sen. Reid has been under constant attack in his home state. Several Republicans have lined up to face Sen. Reid. The polls suggest that the race is a toss-up and the trend lines point to a Reid loss.

Some are beginning to point to Sen. Schumer as a likely candidate to succeed Sen. Reid as Democrat Senate Leader. In order for CIR to pass, it will need the leadership of someone who is not worried about his or her political future since immigration is too hot-button an issue for someone who is concerned about their future. If Sen. Schumer decides that the Majority leadership is in his future, he would be unwise to stump for immigration reform until he secures the leadership position.

If does secure the Democratic leadership, Sen. Schumer may decide to revisit CIR at a point in time when passage looks better – i.e. when national unemployment is not around 10 percent and Democrats do not look to be hemorrhaging seats in both the Senate and House. In the meantime, targeted immigration reform may be the play for politicians interested in specific issues, such as liberalized healthcare immigration.

For Sen. Schumer to seek CIR while surreptitiously stumping for the Senate Democratic Leadership position would be carelessly risky and tell us that Sen. Schumer has not learned about the Senate Leadership Curse that has felled many recent Leaders.

Sen. Reid’s predecessor, Sen. Tom Daschle (D-SD) came under the spell of the Curse. Sen. Daschle was often pegged as the “Chief Obstructionist” by Republicans. South Dakota voters bought into the meme and refused to re-appoint him to the Senate in 2004.

The Senate Leadership Curse is not limited to Democrats. Trent Lott (R-MS) was forced out of the Republican Leadership position in 2003 after some inflammatory and arguably racist comments surfaced. Sen. Lott would unceremonious resign his Senatorial seat in 2007.

Sen. Lott was succeeded by Sen. Bill Frist (R-TN) as GOP Senate Leader. Sen. Frist took a few questionable positions on right-to-life issues and eventually would announce that he was resigning his majority position and leaving the Senate.

With Lott’s exit, the Republican leadership was handed off to Sen. Mitch McConnell (R-KY), who is the current Republican Senate Leader. Under McConnell’s stewardship, the Republicans lost many seats in 2008, leading some to question McConnell’s ability to head the Senate Republicans. In Sen. McConnell’s home state, libertarian Rand Paul is raising impressive amounts of money in his bid to win the open 2009 Senate seat being vacated by fellow Republican Jim Bunning. Mr. Paul is not the Republican Party’s “establishment” candidate. If Mr. Paul is successful it will signal that rank-and-file Republicans are unsatisfied with the current national Republican leadership.

While Sen. McConnell’s leadership is being questioned, his feet are on sounder ground than Sen. Reid’s. With polling numbers continuing to spell doom for Sen. Reid’s re-election, Sen. Schumer’s chances for the Majority position look brighter.

If Sen. Schumer is elected Majority Leader, he will want to avoid the Senate Leadership Curse. However since Sen. Schumer’s 2010 re-election is thought to be a forgone conclusion, he will not have to defend his record until 2016. With a six year cushion before re-election, Sen. Schumer may be the ideal Senator to champion immigration reform, but in 2011.

Neufeld Memo: First H-1B Cases Approved

MU is pleased to report that it has received our first H-1B decisions under the Neufeld Memorandum. All of these first cases have been approved. Approvals have been received from both H-1B Service Centers. All of these H-1B cases were either filed or received RFEs after the January 8, 2010 publication of the Neufeld Memorandum.

In all instances, H-1B employers placed employees at third-party worksites. MU argued that the employer retained legal authority to hire, pay, fire, supervise or otherwise control. We used a variety of approaches in these first cases tailoring our approach to the facts at hand. We have received approvals for cases involving IT professionals and healthcare workers.

It is important to note that these approvals do not mean that the application of post-Neufeld Memorandum cases is settled. Under the Neufeld Memorandum, USCIS may seek additional evidence about the employer-employee relationship in instances where the employee works at a third-party site. USCIS may be delaying application of the Memorandum for some later point in time. Or, these first few cases may have simply not received stricter scrutiny. Nonetheless these first few cases indicate that H-1B cases can receive approval even if the employee is employed at a third-party worksite.

March 2010 Visa Bulletin

The Department of State was a little ahead of the game. It has just released the March 2010 Visa Bulletin. The relevant dates are:

EB1 – all current
EB2 – all current, except China (8 JUL 05) and India (1 FEB 05)
EB3 – all 15 DEC 02, except India (01 JUL 01) and Mexico (01 JUL 02)

Changes since February 2010 Visa Bulletin:
EB1 – none
EB2 – slight progress: China (about 6 weeks); India (about one week)
EB3 – notable progress for All Others (about 3 months); slight progress for India (about one week); no progress for Mexico.

Back in December 2009, the DOS predicted best case scenarios where the cut-off dates would be in the summer 2010.

Those predictions were (with MU comments on the likelihood of meeting this prediction):

EB2:
China: July through October 2005 (good prediction – July 05 already)
India: February through early March 2005 (good prediction – Feb 05 already)

EB3:
Worldwide: April through August 2005 (much progress must be made)
China: June through September 2003 (seems reachable)
India: January through February 2002 (seems reachable)
Mexico: January through June 2004 (modest progress is necessary)
Philippines: April through August 2005 (much progress must be made)

New NCLEX Standards

The National Council of State Boards of Nursing, Inc. (NCSBN) will raise the passing standard for the NCLEX-RN Examination (the National Council Licensure Examination for Registered Nurses), effective April 1, 2010. The new passing standard is -0.16 logits, which is 0.05 logits higher than the previous standard of -0.21. The methodology behind the decision-making is explained in NCSBN’s 2010 NCLEX-RN Test Plan.

It is expected that this will reduce the number of qualified nurses entering the marketplace, which should grow the nursing shortage. The US Department of Labor says that nursing will be the occupation in shortest supply in this upcoming decade.

AILA responds to Neufeld Memo

AILA has sent a comprehensive letter to USCIS Chief Counsel Roxana Bacon arguing that the USCIS ought to set aside the January 8 Neufeld Memorandum Guidance that purports to limit approvals of H-1s in instances where the Beneficiary is employed at a third-party worksite. The letter, which reads like a legal brief, calls into question the core legality of the issuance of the Neufeld Memorandum, and challenges the reasoning throughout the Memorandum.

The letter’s key points are:

1. The issuance of the Neufeld Memorandum is a substantive change to existing law. Such changes to law by Memorandum are illegal under the Administrative Procedures Act. Under the APA, regulatory agencies like USCIS must first publish proposed rules in the Federal Register. Then, the agency must allow the public to comment on the changes. The USCIS must then consider and respond to the public comment.

2. The entire reasoning of the Neufeld Memorandum is unsound. In the Neufeld Memorandum, the USCIS found that existing law did not define “employer-employee” relationship. AILA contends, correctly MU thinks, that existing law does define “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Therefore the USCIS’ use of Supreme Court cases and common-law is improper since the definition is already right there in the definition.

3. To the extent that the USCIS applies the definition, it limits its focus to one of these five characteristics -- control – and fails to explore the other four characteristics – hire, pay, fire, and supervise.

4. Even if the USCIS feels that it needs help in defining “employer-employee,” the USCIS completely misapplies the relevant Supreme Court decisions. Cases such as Clackamas speak to the idea of balancing all characteristics and not limiting the analysis to the control characteristic.

5. When Congress last amended the relevant statutes in the law IMMACT90. It expressly sought to expand the definition of employer, not restrict it. USCIS is not legally allowed to violate Congress’ express intent.

State of the Union

At 9 PM ET tonight, President Obama will make his annual report to the US public on the State of the Union. You can watch the State of the Union speech on YouTube. The State of the Union speech is often an opportunity for President’s to outline their agenda for the upcoming year. As the Financial Times says, “if ever Barack Obama needed to rise to the occasion it is now.”

The healthcare bill has stalled as a result of the surprise election of a Republican to the Senate seat long-held by Democrat Edward Kennedy. Other domestic bills – such as the long-wished for Comprehensive Immigration Bill – were being held back until the completion of the healthcare bill. It remains to be seen if the President and Democrat leadership will revive a smaller healthcare bill or just table the bill. This is one thing to look for in the State of the Union.

As second thing to look for are any references to CIR and how forcefully the President talks about immigration. The President’s Press Secretary hinted that CIR will be mentioned. It is beginning to look like the President will not drive CIR, but is willing to throw his weight behind it if Congress decides to take action.

CGFNS Expedites

CGFNS recently updated their standards for expedites of CGFNS documentation, including the Visa Screen. The new process allows applicants Expedited Review Service only if:

• they have met the criteria of Section 343 of the Illegal Immigration Reform Immigrant Responsibility Act
• all required documents have been received by CGFNS and
• they supply CGFNS with a copy of their Request for Evidence, deportation deadline or offer for employment accompanied by a completed CGFNS Expedited Review Service form

H-1B Strategic Planning Teleconference

The USCIS has just released a comprehensive Memo aimed specifically at H-1B users who place employees at third-party job sites, such as many IT and healthcare staffing companies. The nineteen page Memo, which is available at the link below, clarifies whether an H-1B Petition will be approved or denied in instances where an employee is expected to work at a third-party worksite.

The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary’s work. The Memo lists eleven factors that will be considered.
The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):

H-1B WILL BE APPROVED:
- Traditional employment where the employee occasionally visits off-site clients.
- Long-Term Off-Site Employment where the Beneficiary reports to Petitioner’s staff and not to third-party clients’ staff.
- Long-Term Off-Site Employment where the Beneficiary using the Petitioner’s proprietary software/processes.

H-1B WILL NOT BE APPROVED:
- Self-Employed Beneficiary.
- Independent Contractors.
- “Job-Shop” where the Petitioner places H-1B employee at third-party off-site clients and the Petitioner exercises no control over the Beneficiary’s work.

Characteristics of the "job shop" are:
o Petitioner has contracts with many companies in which it supplies staff to these companies.
o These contracts do not list specific positions, but are staffed on an “as-needed” basis.
o Beneficiary is working in a “core position”. An example of a “core position” is working on a client’s payroll software.
o Beneficiary reports to a manager who is an employee of the third-party company.
o The Beneficiary’s work assignments are determined by the third-party company.
o No proprietary information is used.
o The Beneficiary’s progress reviews are completed by the third-party company.

The key piece of evidence in the H-1B petitions is going to be your company’s contracts with your end-clients. If you use standard contracts with your clients, please send them to your MU attorney so that we can review these contracts.

MU will be hosting a free teleconference with all clients on Tuesday January 26 at 3PM ET / 12 Noon PT. On the teleconference we will discuss how the Memo will impact staffing companies.

In addition, we will discuss preparing for the H-1B cap season, and so all clients of MU who use the H-1B visa are encouraged to dial-in. If you would like to participate on the call, please send an email to Mary. Mary will send in the dial-in information to you a few days before the call.

Sentosa Care Case Re-Emerges

In 2006, eleven Philippine nurses employed at a Suffolk County, Long Island nursing home walked off their positions because of alleged bad working conditions. This mass resignation set off a chain of lawsuits that appeared to end in January 2009. A January 8, 2010 Associated Press report says that the nurses have now filed a federal civil rights lawsuit against their nursing home employer and the Suffolk County District Attorney’s office.

Shortly after the walkout, the Suffolk County District Attorney indicted the nurses alleging that the mass resignation endangered some of the patients at the Avalon Gardens Rehabilitation and Health Care Center. A New York State appellate court eventually ruled that the resignations were lawful and ordered Suffolk County to stop prosecution. The appellate court also ruled that Suffolk County could not indict the nurses’ attorney who had advised the nurses to quit.

Emboldened by their wins in the US court system, the nurses fought back and filed complaints against their Philippine recruiter, Sentosacare. This time, the nurses lost their cases, which had been filed with the Philippine Overseas Employment Agency (POEA) and the National Labor Relations Commission (NLRC). Hearings were heard in the Philippine congress.

After losing in the Philippines, the nurses took their action to America and sued Sentosacare. In early 2008, that case too was dismissed. That dismissal cited a lack of evidence.

A nursing home attorney and the Suffolk County District Attorney didn't immediately comment about the most recent federal civil rights lawsuit.

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.