FSBPT Suspends NPTE Examination for Graduates of Overseas Programs

In a stunning development, the Federation of State Boards of Physical Therapy (FSBPT) today announced that it immediately has suspended National Physical Therapy Examination (NPTE) testing for all graduates of schools located in Egypt, India, Pakistan and the Philippines. India and the Philippines are, by far, the two largest suppliers of foreign-trained Physical Therapists. Graduates from schools in these countries will not be allowed to sit for US examinations for at least one year and probably longer.

The new exam, which is just for the foreign-trained, is to be called the NPTE-YRLY. FSBPT expects to launch the NPTE-YRLY in the fall of 2011. The FSBPT intends to offer the NPTE-YRLY only once per year, at select test sites to be identified at a later date.

The FSBPT website says that this action is a result of “ongoing security breaches by significant numbers of graduates of physical therapy schools from certain foreign countries.” Two years ago, the FSBPT eliminated the exam from being offered overseas. Today’s action disallows the exam from being offered in the United States as well.

FSBPT’s actions are the result of “compelling” evidence that reflects “systematic and methodical sharing and distribution of recalled questions by significant numbers of graduates of programs in the affected countries, as well as several exam preparation companies specifically targeted to these graduates.” FSBPT’s website says several exam preparation companies engaged in a variety of illegal actions, including widespread sharing of hundreds of live test items.
MU will pass along more news as we receive it.

2010-11 OES Wages Have Been Released

On July 1 of every year the US Department of Labor’s Foreign Labor Certification Data Center is updated to reflect the 2010-11 USDOL Prevailing Wages (PW). These PWs generally increase and can impact future Green Card Applications and H-1B Petitions.

Correct application of the PW rules is critical in the H-1B process. Among other wage rules, H-1B Beneficiaries may not be paid less than the Prevailing Wage. There is no affirmative duty to raise an existing H-1B workers’ wage unless an amendment or extension to the H-1B is filed. H-1Bs are the visa of choice for many healthcare occupations including, Physicians, Physical Therapists, Occupational Therapists, Speech Language Pathologists, some nursing roles, and many other allied occupations.

For green card cases, employers should make sure that their postings and advertising processes reflect these increased wages, unless a PWD is already in place. Failure to account for the increased Prevailing Wages could prove fatal to some green card cases.

CGFNS encourages on-line filings

CGFNS recently announced that paper Applications will incur an additional $75 charge. In order to avoid the charge, applicants are encouraged to file their Applications on-line at CGFNS Connect.

CGFNS is one of the major credentials evaluators for internationally-educated students. Their credentials evaluation services include registration and licensure of nurses and other health care professionals, such as Physical and Occupational Therapists.

Perhaps their best-known service is the Visa Screen, which is the CGFNS-branded Healthcare Worker Certificate. US immigration law mandates that all Applicants for nonimmigrant and immigrant visas obtain a Healthcare Worker Certificate prior to entering the US.

Several private companies are approved to issue the HWC, although most are limited by occupation. For instance, FCCPT issues HWCs for Physical Therapists; NBCOT issues HWCs for Occupational Therapists. CGFNS issues HWCs for all seven relevant occupations:

• Licensed practical nurse, licensed vocational nurse, or registered nurse
• Occupational therapist
• Physical therapist
• Speech language pathologist and audiologist
• Medical technologist (clinical laboratory scientist)
• Physician assistant
• Medical technician (clinical laboratory technician)
  
  

AILA Week

This week, MU’s Chris Musillo and Cindy Unkenholt will be heading to the AILA Annual Conference. The Conference is being held at the Gaylord National Hotel & Convention Center, National Harbor, MD, which is just outside of Washington DC. When we return from the Conference we’ll post a summary of news and information that we uncover at the Conference. Posting on this Blog may be light this week unless something significant happens.

On Thursday night, we’ll be dining with a group of about fifteen immigration attorneys who spend a significant part of their practice on immigration for healthcare professionals. If you are an immigration attorney who is interested in participating in the dinner, please let Chris know.

Could Pres. Obama Legalize Millions and force CIR?

As President, Barack Obama does not have the authority to create new law. For instance, he could not singularly enact Comprehensive Immigration Reform, nor could he add visa numbers to needed occupational classifications, such as nurses and other healthcare EB3 positions. He can however implement policy initiatives through Executive Action.

Rumors are swirling that the President may issue a surprise Executive Order to prohibit the deportation of undocumented immigrants who have no criminal records. The rumors are not the work of partisan bloggers, but are now being picked up by credible sources, like the Miami Herald, and have been taken up in a letter by eight Republican Senators to the President.

There could be two reasons for the President to take this action. First, the President owes a debt of gratitude to the Latino community, which came out in full force for him in 2008. By legalizing millions, the President would make an enormous payment toward that debt.

Second, and critical for those who watch for Healthcare Immigration reform, the President’s action could force Republicans to the CIR negotiating table. Whether the strategy works – or whether the President is even considering the Executive Action – remains to be seen.

Is There a Nurse in the House?

The New York Times published a fantastic editorial over the weekend, which had one fatal flaw. The editorial, Is There A Nurse in the House?, was written by Theresa Brown. Ms. Brown is an oncology nurse and is a contributor to The Times’s “Well” blog. She is also the author of “Critical Care: A New Nurse Faces Death, Life and Everything In Between.”

In the article, Ms. Brown makes the case that nurse-patient ratios, such as those in California can substantially improve patient care. Ms. Brown cites work such as a recent study led by Linda Aiken, a professor at the University of Pennsylvania School of Nursing, which found that New Jersey hospitals would have 14 percent fewer surgical deaths if they matched California’s ratio, while Pennsylvania would have 11 percent fewer. The evidence is compelling: nurses save lives.

Ms. Brown explains why nurse-staffing ratios have not caught on as much as one might think.

The real issue, of course, is cost. There’s no denying that hiring more nurses is more expensive in the short term. But having too few nurses leads to burnout, not only because it’s too much work, but because good nurses quit from the stress of knowing they can’t keep their patients safe. Mandated ratios could ultimately save money, because they would reduce both staff turnover and the number of patients who become critically ill due to insufficient care.

So what is the article's fatal flaw? It should be obvious if you regularly read the MU Healthcare Immigration Law Blog. While the nursing shortage temporarily has abated, economists predict that the US' nursing shortage is expected to grow dramatically in the next decade. Ms. Brown should have explained where the nurses are going to come from. They are not coming from US nursing schools, that’s for certain.

Dinner Plans at AILA Annual?

About 15 AILA lawyers who practice in healthcare will be meeting for dinner on Thursday July 1, 2010 at the AILA Annual Conference. The group makes up the core of the FNT listserv, which is a lawyers-only email listserv that I have hosted since early 2004.

If you are an AILA Attorney who is attending the conference and would like to join us, or if you are an attorney who practices in healthcare immigration and would like to join the listserv, drop me an email.

State of Immigration Legislation - Nurses

It appears unlikely at this time that CIR will be passed in 2010. The entire US House of Representatives is up for election in November, along with one-third of the Senators. The elections are expected to be as contentious as the last few election cycles.

The only chance for positive immigration reform is through piecemeal (smaller) immigration legislation. Unfortunately the prospects for piecemeal legislation are also small, as there is little motivation in Washington DC to liberalize visa quotas given that the US’ nearly 10 percent unemployment rate. In light of these real world factors, the odds of a Schedule A visa bill in 2010 are very low.

Longer term, the odds are much better. While the nursing shortage temporarily has abated, economists predict that the US' nursing shortage is expected to grow dramatically in the next decade. This supply will be filled by internationally-trained nurses in the forthcoming years. Of course this is of little comfort to US businesses that have spent countless hours developing their international connections and international nurses who have met all licensure and Visa Screen rules, only to have the US visa quota system let them down.

The one bright spot is that we’re starting to see promotion of retrogressed dates. The DOS predicts that the Worldwide EB3 (including Philippines) should be well into 2004 by the end of the summer. If we see the same progression in FY2011 that we saw in FY2010, the Worldwide EB3 date should move through 2005 and into 2006 by the end of FY2011.

July 2010 Visa Bulletin

The Department of State has just released the July 2010 Visa Bulletin

The relevant dates are:
EB-1 – all current
EB-2 – all current, except China (22 NOV 05) and India (01 OCT 05)
EB-3 – all 15 AUG 03, except India (22 NOV 01) and Mexico (U)

There was excellent progress in India EB2, which jumped 8 months from 01 FEB 05. There was also a one month progression in India EB3 and a 6 week progression in all EB3 (including Philippines).

The Visa Bulletin also included a prediction section based off of expected demand:

F. VISA AVAILABILITY IN THE EMPLOYMENT-BASED CATEGORIES

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 as follows:

EB-1: Current
EB-2: all current, China and India: March or April 2006
EB-3: Worldwide: June through September 2004, China: October through December 2003, India: February 2002, Mexico: Unavailable, Philippines: June through September 2004.

Neufeld Memo Lawsuit Filed

The Techserve Alliance (formerly the NACCB), the American Staffing Association, and three private companies yesterday sued the USCIS alleging that the government illegally issued the Neufeld Memorandum. This issuance altered long-standing policy that had allowed staffing firms to obtain H-1B visas on the same basis as other companies.

While the Complaint has yet to be made public, the allegations are expected to be similar to those raised in prior discussions with USCIS.

In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not “employers”.

But this is wrong. Existing law defines an “employer” as one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Plainly, staffing companies meet these characteristics. Instead of applying the law as it was written, the Neufeld Memorandum allows the USCIS to pay lip-service to these five factors.

The Memorandum has caused grave concerns for many companies that use the staffing model because of inconsistent adjudication and unlawful USCIS denials. The IT staffing industry has been particularly impacted. The Memorandum derisively referred to the IT staffing model as a “job shop”. Healthcare staffing models recently have also come under fire; USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.

Fewest Intl NCLEX Test Takers on Record

The latest NCLEX data paints a dire picture for healthcare officials who may be looking toward international workers to help alleviate the nursing shortage. The first quarter of 2010 saw the fewest number of international NCLEX test takers and test passers since 2006. The 3,120 international NCLEX test passers are just 55% of peak 2007 numbers.

While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. The U.S. nursing shortage is projected to grow to between 260,000 and 500,000 registered nurses by next decade. If even the smallest estimates are correct, a shortage of this magnitude would be twice as large as any nursing shortage experienced in this country since the mid-1960s.

Only 3,120 international test takers took and passed the NCLEX in the first quarter of 2010. That’s the smallest number of international test takers since at least 2006, which is the earliest data on the NCSBN website.

In 2006, about 20,907 internationally educated RNs passed the NCLEX exam for an average of 5,227 per quarter. In 2007, the volume jumped; 22,827 internationally educated nurses passed the NCLEX exam, or 5,707 per quarter. With the onset of retrogression, 2008 saw a decline; 18,905 internationally educated RNs passed the exam, or 4,726 per quarter. In 2009, the international NCLEX pass number shrunk to 13,799 per year (3,450 per quarter).

It is obvious that reasonable visa opportunities for international nurses must happen or else the US is going to find that it has a massive nursing shortage and international nurses are no longer there to fill the gap.

Sentosa Care Lawsuit May Go To Trial

The long-running Sentosa Care lawsuit continued last week when New York Judge Stephen A. Bucaria denied Sentosa Care’s latest attempt to have the lawsuit dismissed. A grant of Summary Judgment would have been an unusual remedy in a case that has lasted four years and meandered through several courts. The ruling now appears to set the stage for a full trial between the Phillipine nurses and their old employer.

The matter began in 2006 when a group of nurses walked off their jobs at the nursing home. The nurse’s lawsuit filings have alleged unfavorable working conditions and unfair contractual clauses. Sentosa Care contends that the walk-off was illegal.

FAQ Fridays

Every Friday, MU’s Cindy Unkenholt posts her “FAQ Friday” to MU’s Facebook page. The FAQs (Frequently Asked Questions) generally focus on healthcare immigration-related issues. For instance, last week’s FAQ Friday was:

Q: Can I nurse qualify for EB-2?

To learn the answer to this one, view past FAQs, and to get the latest quick-hit new items, become a fan of MU on Facebook. The MU Facebook page also allows Fans to comment on news stories and issues that affect US immigration.

NY considering BSN requirement for RNs

At the May 2010 meeting of the New York State Education Department, the Registered Nurse Professional Practice Committee was presented with a proposal to increase the minimum educational requirement to a Bachelors degree.

Under the recommended plan, all currently-licensed RNs would be "grandparented," and would not have to obtain the Bachelors degree. Instead, all diploma and associate degreed RNs, who obtain licenses after 2012 would need to obtain a Bachelors degree within 10 years of the initiation of their license.

Nurses who failed to obtain the Bachelors degree would have their licenses put on "hold". This “hold” is similar to the action taken when a licensee fails to meet continuing education requirements in those professions that mandate continuing education as a criterion for continued registration.

Other states such as New Jersey also are considering raising their educational requirement. Advocates for the New York plan cite recent studies that show that increasing the number of baccalaureate nurses in an acute care hospital decreases the number of patient deaths. Similar legislation was introduced into the New York legislature in 2005, but was tabled because of supply concerns.

It seems inevitable that states will raise their minimum educational requirements to the level of Bachelors degree. Many countries’ minimum educational requirement is a Bachelors degree. In the US, the only state to have had a Bachelors degree minimum was North Dakota, which lowered their requirement and joined the other 49 states in the middle part of this decade.

If any state did raise their requirement to a bachelors degree, employers in that state could more liberally use the H-1B visa as a partial solution to their expected long-term nursing supply shortages. The H-1B can be used to employ some Registered Nurses.

Visa Bulletin Analysis and Predictions

In the January 2010 Visa Bulletin, the Department of State made “best case” predictions on where the visa numbers would be in September 2010, which is the end of the Fiscal Year 2010. October 2010 is the first Visa Bulletin of Fiscal Year 2011.

In this Blog post, MU has done a analysis of the progress of these projections, including the just-released June 2010 Visa Bulletin. Most of the DOS' projections are proving to be accurate, with the notable exception of All Other EB3, including the Philippines.

India EB2
June 2010: 01FEB05.
Predicted Sept 2010: February through early March 2005
MU Comment: The India EB2 visa number is right on the mark.

China EB2
June 2010: 22NOV05.
Predicted Sept 2010: July through October 2005.
MU Comment: The China EB2 visa number has already surpassed the “best case” scenario, which is good news.

India EB3
June 2010: 22OCT01.
Predicted Sept 2010: January through February 2002.
MU Comment: The India EB3 number has steadily moved since January 2010, when the India EB3 number was 22JUN01. The number looks to be on pace to meet the predicted number.

China EB3
June 2010: 22JUN03.
Predicted Sept 2010: June through September 2003.
MU Comment: The China EB2 visa number is right on the mark.

All Other EB3 (incl. Philippines)
June 2010: 22 JUN 03.
Predicted Sept 2010: April through August 2005
MU Comment: This is the prediction that is the most disheartening. By now we would have expected the All Other EB3 to be well into 2004, and maybe even into 2005. The fact that the number is still in mid-2003 leads us to believe that the predicted date will not be reached.

That having been said, MU expects the All Other Visa Number to begin to move at a quicker pace. There does not appear too many cases that are still left that are this old on our roster of cases and on the roster of cases still with other attorneys.

June Visa Bulletin

The Department of State has just released the June 2010 Visa Bulletin

The relevant dates are:
EB1 – all current
EB2 – all current, except China (22 NOV 05) and India (01 FEB 05)
EB3 – all 22 JUN 03, except India (22 OCT 01) and Mexico (U)

This is slow progress from the last few Visa Bulletins for All Other EB3 Applications. All Other EB3 has increased 9 months since February 2010 Visa Bulletin, when it was 22 SEP 2002. India EB3 has also improved about 4 months since February’s Visa Bulletin (22 JUN 01). Mexican EB3 remains unavailable, as it is expected to be until the end of the fiscal year in September 2010.

Election Season

Two of the largest suppliers of healthcare professionals to the US are the Philippines and the UK. MU attorneys and staff have traveled on many occasions to both countries for recruiting and information sessions with our clients. This week both countries had groundbreaking elections.

Senator Benigno “Noynoy” Aquino III is poised to become the first Philippine president elected through an automated election. President-elect Aquino is the son of former President Corazon Aquino and former Senator Benigno Aquino, Jr.

In the UK, David Cameron looks to lead the first British coalition government since World War II. The coalition agreement ends a week of discussion and negotiations between Cameron’s Conservative government and the upstart Liberal Democrats.

MU congratulates nationals of both countries on their landmark elections.

And lastly, Happy Nurses Week to all of our Nurse readers!

FCCPT reapproved until 2015

The Foreign Credentialing Commission on Physical Therapy (FCCPT) has been re-approved by USCIS to issue Healthcare Worker Certificates for an additional 5 years, through 2015. FCCPT is one of two organizations that are approved to issue Healthcare Worker Certificates for Physical Therapists. The other, CGFNS, issues the Visa Screen as its Healthcare Worker Certificate. FCCPT’s Healthcare Worker Certificate is known as the Type I.

The Healthcare Worker Certificate is a prerequisite for all US visas, including the H-1B, TN, and the EB2 and EB3 green cards. Either the FCCPT or the CGFNS is sufficient.

California BRN now requires SSN

On April 26, 2010, the California Board of Registered Nursing announced that it would no longer accept applications that do not have a Social Security Number. The California BRN reasons that since the Nursing Practice Act provides for automatic issuance of the license upon approval, the Social Security Number is a prerequisite to the filing of the application. This is problematic for overseas nurses who are ineligible for Social Security Numbers by virtue of not having US visas and work authorization.

If a nurse has passed the NCLEX and the only issue holding up the issuance of the license is the lack of a Social Security Number, the USCIS should still approve the visa petition. This process would be consistent with the USCIS’ long-standing procedure on petitions solely lacking Social Security Numbers.

For instance, a November 20, 2001 INS (predecessor to the USCIS) Memo directs USCIS officers to approve petitions when the sole missing item is the social security number. Similarly a May 20, 2009 USCIS Memo reiterates this position.

Healthcare Immigration Primer: Occupational Therapists

TEMPORARY OPTIONS: Occupational Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

An Occupational Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three (43) listed occupations.

GREEN CARD OPTIONS: Occupational Therapists have not been designated as a Schedule A occupation, and therefore they are not exempt from the labor certification process (“PERM”). Therefore, the green card process for an Occupational Therapist will require PERM labor certification process followed by either Adjustment of Status or a Consular Interview.

Because the first professional degree required for licensure as an Occupational Therapist in the United States is evolving, some Occupational Therapist positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available. Generally speaking there is no backlog for EB-2 visas for most countries (excluding India and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

CURRENT ISSUES: Filing EB-2 applications is difficult, although these can be approved in some instances where the employer requires a Bachelors degree and five years of progressive experience or the employer requires a Masters degree.