September Visa Bulletin

The Department of State has just released the September 2010 Visa Bulletin. Again, there has been a notable promotion of priority dates.

The relevant dates are:

EB-1 – all current
EB-2 – all current, except China (08 MAR 06) and India (08 MAY 06)
EB-3 – all 15 DEC 04, except China (22 OCT 03), India (01 JAN 02), and Mexico (U)

Notes on specific countries:

China: China EB2 improved by two months since the August Visa Bulletin. China EB3 remained the same.

India: India EB2 improved by two months. There was excellent progress in India EB2, which has now jumped 15 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 however did not move from the August 2010 Visa Bulletin.

Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months. It may move to 2005 in October.

H-1 Cap Update: 27,300 used

The H-1B is the common employment-based nonimmigrant visa. The H-1B is a common visa for healthcare professionals such as Physical Therapists, Occupational Therapists, Speech Language Pathologists, some nursing positions, and other professions ordinarily associated with a Bachelors degree or greater. The H-1B traditionally has been in great demand by the IT community.

The US government can issue 65,000 cap-subject H-1Bs in any given year. An additional cap of 20,000 H-1Bs is set aside of graduates of US Masters Degrees programs (or greater programs, including Ph. Ds). For the middle part of this decade, the H-1B cap was fully subscribed on the first day that Petitions were allowed to be filed, April 1.

This year has seen the smallest number of H-1B Petitions in many years. Through the end of July, just 27,300 cap-subject H-1Bs have been approved and 11,600 cap-subject Masters H-1Bs. Last year, we saw almost twice as many H-1Bs at this time and last year’s cap-subject H-1B cap lasted until mid-December. This year’s numbers indicate that the cap-subject H-1B quota should be available until at least early 2011.

Generally speaking “new” H-1B petitions are subject to the H-1B cap. 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.

With the economic conditions of the last two years, H-1B usage has slowed dramatically. As I have argued in the past, less H-1B usage in a shrinking economy is evidence of the lack of fraud in the H-1B program.

Combating the FSBPT’s Discrimination Policy

As we have previously posted, the FSBPT's July 12 policy barred graduates from universities in the Philippines, India, Egypt and Pakistan from sitting for the NPTE. Under the FSBPT’s current policy, graduates from those four countries will be given their own separate but equal exam starting in the Fall of 2011.

MU knows that several states have begun contacting the FSBPT to inquire if the FSBPT can speed up this process or rescind it. Some states may act in the next few days.

Once the letter is issued, it will be incumbent on the FSBPT to reconsider alternatives to their separate but equal approach or run the risk of legal action. MU is also aware of several different parties and states that are consulting with attorneys to evaluate their legal options. Legal action is the least –desired course of action. If you have been denied an opportunity to take the NPTE and you are in the US and would like to help remedy the FSBPT’s policy, please contact Cindy Unkenholt or Chris Musillo.

California Dreaming

On July 28, the California Board of Physical Therapy will hold its Quarterly Board Meeting in Sacramento, California. The agenda includes a Board discussion on the Actions Taken By the Federation of State Boards of Physical Therapy (FSBPT) to Suspend Testing for NPTE Exam Candidates from Specific Countries.

The Meeting is open to the public. If you are in or around the Sacramento area, you should attend. If you do not attend, you should send an email to the Board explaining your position.

If California is not convenient for you, perhaps New Jersey is. New Jersey’s Board of Physical Therapy meets today. If not New Jersey, then which state’s Board meeting can you attend to make your position known?

I am in the process of gathering dates for all major states. Here is the list that I have so far:

New Jersey – July 27, 2010
Arizona – July 27, 2010
California – July 28, 2010
Florida – August 5, 2010
Maryland – August 17, 2010
Illinois – October 2010

If you need model letter and/or talking points to help you frame your communications, please email me or Cindy. Also, if you know of other state’s Board meeting dates, please let us know by commenting or emailing.

Philippine Ambassador weighs in

Willy C. Gaa, the Philippine Ambassador to the United States has written a strong letter to FSBPT Director William Hatherill condemning the FSBPT’s recent testing ban on Philippine, India, Egyptian, and Pakistani graduates. In the letter Ambassador Gaa said that the testing ban was “arbitrary” and “a blanket indictment” on the credibility of all Philippine Physical Therapists. He calls for the FSBPT to revoke the testing ban and to work with the Philippine government to address the problem of review center abuses.

Ambassador Gaa outlined efforts that the Philippine legislature has taken to ensure the integrity of standardized tests, including a fast-track bill to give broader authority to the Philippine Commission on Higher Education (CHED) to regulate review centers.

FSBPT "reaffirms" its decision

A recent posting on the FSBPT website says that the FSBPT Board has “reaffirmed its prior decision” to suspend graduates of PT programs in the Philippines, India, Pakistan and Egypt. The website posting does not indicate why the decision was revisited, what criteria went into the decision, and whether the Board seriously considered revoking its prior decision.

The posting does indicate that the FSBPT Board is directing its staff to quickly produce the FSBPT-YRLY, although it does not expect that the FSBPT-YRLY will be available earlier than the “latter part of 2011”.

Federation Discrimination?

As was mentioned in the Monday posting, the Federation of State Boards of Physical Therapy immediately has barred graduates of Physical Therapy university programs in the Philippines, India, Egypt and Pakistan from taking the U.S. National Physical Therapy Exam. Since our post on Monday more news has come out:

- The ban impacts anyone who has received their first professional degree from a school in the four named countries. For example, an applicant presently in a United States Masters PT program would be barred from taking the NPTE if s/he previously received a degree from a Philippine university.

- The Federation has been involved in a lawsuit in the Philippines for several years. The lawsuit is based upon past incidents of alleged cheating.

- The “cheating” appears to be allegations of tests-takers memorizing questions and then regurgitating the questions to other students.

- There does not appear to be any allegation that any universities in the four countries engaged in any malfeasance. The cheating allegations are limited to certain test takers and certain review centers.

- More countries may be added to the banned list.

While the Federation needs to preserve the integrity of the test, the Federation’s remedy is overbroad and perhaps illegal. US law does not allow discrimination on the basis of national origin. US law also assures all of due process and equal protection.

The Federation will likely argue that their approach – banning graduates of Universities in the Philippines, India, Egypt and Pakistan -- is not a ban on nationals of those countries. This appears to be a distinction without a difference. The vast majority of university graduates are nationals of the country where the university is located.

MU has been working with industry leaders to craft a reply and a response to the Federation. We ask that Therapists and employers of Therapists contact their State Board of Physical Therapy to protest the Federation’s actions. If the State Boards hear from enough people, they may prompt the Federation to change their approach. Please take a minute to contact your State Board.

August Visa Bulletin released

The Department of State has just released the August 2010 Visa Bulletin. There has been a significant promotion of priority dates.

The relevant dates are:

EB-1 – all current
EB-2 – all current, except China (01 MAR 06) and India (01 MAR 06)
EB-3 – all 01 JUN 04, except China (22 SEP 03), India (01 JAN 02), and Mexico (U)

Notes on specific countries:

China: China EB2 improved almost four months since the July Visa Bulletin. China EB3 unfortunately is now separate from the EB3 All Chargeability.

India: India has made significant progressions in the last two months. There was excellent progress in India EB2, which has now jumped 13 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 is now in 2002 for the first time.

Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months.

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.