WHAT THE LACK OF H-1B FILINGS REALLY MEANS

This year a mere 9,200 cap-subject H-1B Petitions have been filed through April 29. In prior years we have seen many more H-1B cases accepted as slots were available; in the go-go years of the 2000s, the H-1B cap was reached on the first day.

This year's paucity of H-1B Petitions provides compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries. That argument just does not jibe with what is actually happening.

If H-1B visa labor was being used primarily to lower US workers salaries, the H-1B filing numbers wouldn’t be impacted to any meaningful degree. Why? Because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less. This logic is straightforward.

Yet, this year we’ve seen a dramatic downtick in H-1B visas filed in industries like Information Technology and Finance. Meanwhile industries with continued staffing shortages, such as healthcare and teaching, continued to file H-1B Petitions. If the H-1B program was being used to lower salaries, why aren’t the IT and financial industries continuing to file H-1B petitions? Are these industries not interested in cutting costs?

Critics of the H-1B system fail to acknowledge just how well the system actually works. In robust times, the H-1B system allows growing companies to attract more workers from overseas when they can't fill those jobs with US workers. In down times, when jobs are few, the market does what it is supposed to do and fewer H-1B job offers are made.

If Congress really wants to reform the H-1B process, it ought to eliminate the arbitrary quota and just let the market sort out the numbers question. Congress also ought to give non-bachelor degree occupations with well-documented staffing shortages, such as nursing, access to the H-1B program.

H-1 CAP MOVES SLOWLY

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 8,000 H-1B cap-subject Petitions have been receipted by USCIS. This is much lower than in recent years and likely reflects the fact that while the US economy has improved in the recent months, it is not nearly as robust as it was in the middle part of the last decade.

The USCIS has receipted in about 6,000 Masters Cap H-1B Petitions. To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there was about 40,000 H-1Bs receipted in by USCIS through May 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy.

BLS: HEALTHCARE JOBS STILL GROWING

The latest US Bureau of Labor Statistics Employment Situation Summary says that although US unemployment rate is still at 8.8%, jobs are still plentiful in healthcare. Since November, many Americans have found jobs. The unemployment rate has tumbled from the November high of nearly 10%.

Health care employment continued to increase in March (+37,000 jobs). Over the last 12 months, health care has added 283,000 jobs, or an average of 24,000 jobs per month. The conclusion remains the same for employers in this sector as it has for the previous 20+ years: internationally-trained staff will remain a significant part of the US healthcare workforce.

PRES. OBAMA HOLDS IMMIGRATION MEETING

With President Obama's re-election campaign beginning in earnest, he is anxious to court immigration-friendly voters. These voters tend to live in important states such as Florida, Texas, and California. The President is far from a sure thing to be re-elected. The President's greatest "strength" right now, is the lack of compelling Republican challenger.

In order to burnish his credibility with these pro-immigration voters who could sway a tight election, the President yesterday met with high-profile immigration-friendly people, such as Arnold Schwarzenegger, New York Mayor Michael Bloomberg, and San Antonio Mayor Julian Castro, all who have called on the President to lead on immigration reform.

Unfortunately, no serious analysts believe that the President is doing anything other than paying lip-service to immigration reform, despite needed visa liberalization in shortage occupations, such as Physical Therapy, Occupational Therapy and Registered Nursing.

MAY 2011 VISA BULLETIN

The Department of State has just released the May 2011 Visa Bulletin. This Visa Bulletin had small progress in several classifications. Notably, the India EB-2 date moved two months.

May 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01AUG06	01JUL06	Current
EB-3	22AUG05	15APR04	15APR02	08SEP04

The Bulletin also included a lengthy explanation and prediction of future month's expected dates:

Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: three to six weeks
China: one to three weeks
India: none to two weeks
Mexico: although continued forward movement is expected, no specific projections are possible at this time.
Philippines: three to six weeks

Please be advised that the above ranges are estimates based upon the current demand patterns, and are subject to fluctuations during the coming months. The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced.

US ENVOY TO PN NURSES: “BE GREAT”

“Dare to be great nurses… Dare to build a better Philippines and a better America.” This was US Envoy to the Philippines Henry Thomas’ challenge to the graduating class of Angeles University Foundation’s College of Nursing on Saturday.

While his challenge was clear, his views on the likelihood of the retrogression were less so. “All I can say is, clearly, there’s a demand in the US but also, as President Obama has said, we have nursing graduates in the US who also have to finish their examinations and obtain jobs.”

This wishy-washy statement perfectly captured President Obama’s inconsistency and lack of focus on the necessity of alleviating the retrogression. On one hand, the President has said many of the right things on making an immigration system that is fair to all – American patients, American healthcare staff, and foreign-trained healthcare staff. On the other hand, his lack of action and lack of leadership has frustrated all stakeholders.

FOREIGN AFFAIRS MANUAL UPDATED

The Department of State has updated their Foreign Affairs Manual (FAM) to reflect the fact that B1/B2 applicants ought to be given visas to come to the US to take the NPTE. MU encourages all B1/B2 applicants who had been denied B1/B2 visas for this reason to re-apply for a B1/B2 interview.

As we mentioned in our last MU update, all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US. Failure to prove nonimmigrant intent remains a valid reason for the Consular/Embassy official to deny the B1/B2 application.

Updated FAM:

9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant

(CT:VISA-1635; 03-31-2011)

The requirements for classification as an H-1B nonimmigrant professional

may or may not include a license because States have different rules in this

area. If a State permits aliens to enter the United States as a visitor to take

a licensing exam, then USCIS will generally require a license before they will

approve the H-1B petition. However, some States do not permit aliens to

take licensing exams until they enter the United States in H-1B status and

obtain a social security number. Therefore, a visa should not be denied

based solely on the fact that the applicant does not already hold a license to

practice in the United States.

B1/B2 VISAS SHOULD BE AVAILABLE TO NPTE REGISTRANTS

As many MU friends and clients are aware, US Embassies have been denying PT applicants a B1/B2 visa, if the applicant has sought to come to the US to sit for the NPTE. The denials have been based on the Embassy mistakenly belief that taking the licensing exam is not a valid reason to enter the US on a B1/B2.

MU just has learned the Department of State's HQ office in Washington DC is in the process of issuing a revised Guidance to the US Embassies, including Manila. The Guidance should correct this mistaken policy.

Please keep in mind that all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US.

INDIA EB-2 SHOULD LEAP FORWARD

The Department of State has told AILA that because of decreasing demand for EB-1 visa numbers, the EB-2 category will be given at least 12,000 additional visa numbers. The 12,000 numbers will largely be given to Indian EB-2 applicants. EB-2 Chinese natives may also be positively impacted by this news.

The May 2011 Visa Bulletin, which should be released in mid-April 2011, should reflect this news.

The EB-2 category is appropriate for positions that require a Masters Degree or a Bachelors Degree and five years of progressive experience and typically includes Doctors, Physical Therapists, Occupational Therapists, and other professions that require advanced degrees.

FEWER NURSES MEANS GREATER RISK OF DEATH

Sometime in 2011, Congress may wish to revisit the US’ immigration policy. MU has consistently called on Congress to raise the artificial limits on true shortage occupations, such as Registered Nursing. At present, it takes a fully-qualified foreign-trained Registered Nurse about six years to obtain an immigrant visa. These nurses pass identical licensing exams to US nurses. They also must pass English fluency exams.

The Department of Labor continues to point to nursing as one of the occupations in the shortest supply.

Now, comes a March 17, 2011 New England Journal of Medicine research paper confirming that Fewer Nurses Means a Higher Risk of Death. The study, authored by well known researchers such as Dr. Peter Buerhaus, cites hundreds of thousands of admissions and nurse work shifts. The researchers found that a patient’s risk of death increased by about two percent for each work shift that was what the researchers categorized as understaffed.

The study was also subject of a recent Scientific American podcast, which is freely available for download.

The US’ immigration policy is woeful on so many fronts, but liberalized nurse visa rules should be a simple one to fix because the benefits to Americans would be enormous.

USCIS to show deference on Non-Profit Affiliation H-1B Rule

The USCIS has just announced that it will give deference to Petitioners who have previous approvals in all non-profit H-1B cap-exempt cases.

Non-profit entities that are related to or affiliated with an institution of higher education have long been approved as cap-exempt Petitioners. This has allowed these Petitioners to file H-1B Petitions regardless of whether the H-1B cap had been reached. In the recent past, however, the USCIS has taken a strict interpretation on the question of whether a non-profit was "related" to an institution of higher learning (e.g. a University).

The new USCIS policy will allow those Petitioners who previously have been granted approvals to file new H-1B cases confidently without fear of inconsistent adjudication. The burden will be on these Petitioners to prove that they have been approved for cap-exempt H-1Bs in the past.

April 2011 Visa Bulletin

The Department of State has just released the April 2011 Visa Bulletin. This Visa Bulletin had very small progress in several classifications.

March 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	22JUL06	08MAY06	Current
EB-3	22JUL05	01MAR04	08APR02	08MAY04

FSBPT to have fixed testing for all applicants

The FSBPT has just announced that they will be using a fixed test date for all applicants regardless of country of education or nationality. The FSBPT’s web-page posting makes clear that this was in part in response to their unsuccessful defense of the NPTE-i program in Georgia. The fixed test dates for 2011 are:

· September 7, 2011 (Wednesday)

· October 20, 2011 (Thursday)

· December 5, 2011 (Monday)

In 2012, the FSBPT has committed to five testing days.

In February a Georgia judge ruled that the FSBPT's previous NPTE-i testing scheme violated Georgia law. The Georgia judge’s decision did not address whether or not the NPTE-i violated Georgia discrimination and due process Constitutional issues. Those issues may be addressed in an appeal, should the FSBPT chose to appeal the Georgia court’s decision.

To some degree an appeal would be moot in light of the FSBPT’s actions today. MU commends the FSBPT for producing a fair and equitable testing system.

OFWs at NAIA

Effective March 1, 2011 all Overseas Philippine Workers (OFW) who are exiting the Philippines via Ninoy Aquino International Airport must pass through the POEA’s Labor Assistance Center prior to boarding their airplane.

The purpose behind the procedure is to insure that all OFWs are properly documented and have their proper POEA clearance. The POEA’s press release says that priority exit lanes will be put into place for recruiting companies who are recipients of performance awards.

FOURTEEN HEALTHCARE WORKERS INDICTED IN CHICAGO

Fourteen healthcare workers – mostly members of the healthcare immigrant community – have been indicted in Chicago on healthcare fraud violations. Nine of the defendants work in home healthcare. While the immigration status of the individuals is not known, it is known that most are members of the immigrant community.

If these allegations are true, the immigrant status of these individuals could be impacted, including removal from the United States. MU applauds the DOJ for its work on combating fraud in the healthcare industry.

B1/B2 visa issues at Manila Embassy

MU has had several clients inform us that the Manila Embassy has been denying B1/B2 visas to applicants who need the B1/B2 visa in order to come to the US and sit for the National Physical Therapist Exam (NPTE). MU is working with the Department of State in order to try and solve the problem. The problem stems from the Embassy's misinterpretation of the recent Georgia decision and the need for an NPTE in advance of licensure.

If you have had your B1/B2 denied at the Consulate because the officer mistakenly believes that the NPTE is not required for PT licensure please either add your comment to the MU Healthcare Immigration Law blog, our Facebook page, or email Chris Musillo or Cindy Unkenholt.

March 2011 Visa Bulletin

The Department of State has just released the March 2011 Visa Bulletin, which is the sixth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had very small progress in several classifications.

March 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	08JUL06	08MAY06	Current
EB-3	01JUL05	22JAN04	15MAR02	08Jan04

FSBPT’S POLICY RULED INVALID AND UNENFORCEABLE IN GEORGIA

by Chris Musillo and Cindy Unkenholt

As readers of this blog certainly are aware, last summer the FSBPT took the unprecedented action of barring graduates from schools located in Egypt, India, Pakistan and the Philippines from taking the National Physical Therapy Examination (NPTE).

On February 9, a Georgia court ruled that the FSBPT’s policy is illegal in Georgia. Barring any last minute legal maneuvers by the FSBPT and/or the Georgia State Board of Physical Therapy, impacted applicants for licensure in Georgia should soon be able to both apply for licensure and have the same availability to take the NPTE as every other applicant. If the Georgia State Board fails to offer a test, it will be in contempt of the court order.

This leads MU to predict an increase in applications for licensure through Georgia until other State Boards insist that the FSBPT allow their candidates unrestricted access to the NPTE or are forced to do so through similar litigation.

MU, through our association with the AAIHR, worked hard on the legal effort. We are very pleased to see that the Georgia court has found in favor of the Physical Therapists and did not allow an illegal policy to continue

The Decision presently is limited to applicants to Georgia. Other states are free to adopt the Georgia court’s ruling. MU is working through our association with the AAIHR to see that the logic behind the Georgia decision is applied to other states. It is now incumbent on other state boards of Physical Therapy immediately to:

1) resume processing of all qualified applications for Physical Therapy licensure;
2) obtain immediate authorization (through an emergency Board Meeting if necessary) to declare the actions of the FSBPT impermissible; and
3) notify the FSBPT that each State Board mandates that all candidates who are deemed eligible and authorized to take the NPTE be immediately accommodated without respect to country of education.

Any readers to this Blog are encouraged to call their state boards. The FSBPT must be encouraged to rescind this policy on a national basis. It is only with pressure on the State Boards that the policy will be nationally rescinded.

Unquestionably, the integrity of the NPTE must be maintained. However, it must be maintained in a nondiscriminatory and legal manner that does not penalize innocent individuals.

Specifically, the court has agreed that the policy of the FSBPT which barred access to the NPTE to certain Physical Therapists based upon the country of education was impermissible and has entered Declaratory Judgment and a Permanent Injunction against the FSBPT and the Georgia State Board. The Court specially barred the Georgia Board and the FSBPT from:

a. enforcing the Testing Prohibition, in whole or in part, in the Georgia;
b. taking any action which would prohibit candidates eligible for physical therapy licensure under Georgia law from registering for and taking the NPTE;
c. engaging in any action that would subject candidates eligible for physical therapy licensure under Georgia law who graduated from physical therapy programs in Egypt, India, Pakistan, or the Philippines to any testing requirements, measures, conditions, terms, or circumstances different than those imposed on all other candidates eligible for physical therapy licensure in Georgia;
d. permitting any individual or entity to impose testing requirements, measures, conditions, terms, or circumstances inconsistent with Georgia law upon any candidate eligible for physical therapy licensure in Georgia.

If you have any questions or would like any additional information, please do not hesitate to contact Chris Musillo or Cindy Unkenholt.

NEXT VERSE, SAME AS THE FIRST?

Politico says that the new Senate apparently is seeking to do what several prior Senates have been unable to do: craft meaningful immigration legislation. In the five years of this blog, we have posted dozens of stories in which comprehensive immigration legislation has been considered.

This latest effort has all the usual suspects saying all the usual things.

Chuck Schumer: "We realize it is a tough thing to do, but it is very important, and it’s worth a shot. We've been getting interesting, positive responses — from places you wouldn’t expect it."

Lindsey Graham: "It's in the infant stage; I don’t know what the political appetite is to do something."

It remains to be seen if this is more of the same. The bright spot is that no law can be changed unless politicians are at least considering it.

No word on the viability of including immigration reform for healthcare occupations. However, the inclusion of the US Chamber of Commerce and Sen. Schumer likely mean that immigration for healthcare occupations will be on the table.

FOLLOWING UP ON THE EMPLOYER REFERRAL NOTICE REQUIREMENT

In the comments to a recent posting on this Blog posting, a reader, “Michael,” raised an interesting point. Because of the lengthy nature of my reply, I’ve decided to re-post the exchange as its own Blog posting.

Michael said...

This does bring about an interesting point regarding the importance of internal media posting. The notice of filing alone does not satisfy the requirement of documentation awareness.

"In addition, the employer MUST publish the notice in any and all in-house media..." (emphasis added) §656.10(d)(ii)

Why did BALCA not specify that both (a) and (b) need exist together?

As with a lot of these PERM recruitment requirements, it is difficult to understand precisely what the DOL was aiming for in (d)(ii).

I read (d)(ii) to mean that other in-house media is only required if that in-house media is used to recruit for similar positions. There are four scenarios I can envision in which this is relevant:

1. An employer has a company-wide newsletter in which it normally posts job openings. In this instance the employer must specifically post the PERM position.
2. An employer has a company-wide newsletter in which it does not normally post job openings. In this instance, the PERM position would not need to be posted.
3. An employer has a newsletter in which it normally posts job openings. In this instance the employer must specifically post the PERM position. Additionally, if the employer includes notice of an incentive component to the referral program, this Notice likely can meet the employer referral program standard that was the subject of the Sanmina-Sci decision.
4. An employer has a company-wide newsletter in which it does not normally post job openings. In this instance, the PERM position would not need to be posted. However, if the employer elects to post the notice in the newsletter and the employer includes notice of an incentive component to the referral program, this Notice likely can meet the employer referral program standard that was the subject of the Sanmina-Sci decision.

Obviously much of these scenarios are very fact specific. Thanks for the question/comment, Michael. It was a good one.