H-1B CAP COUNT: 41,000

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 41,000 H-1B cap-subject Petitions have been receipted by USCIS as of October 7, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

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

NOVEMBER 2011 VISA BULLETIN

The Department of State has just released the November 2011 Visa Bulletin. The November Visa Bulletin is the second Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about four months.

The Visa Bulletin contained a discussion about future EB-2 movement:

The November Employment-based Second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

Nov 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01NOV07	01NOV07	Current
EB-3	22DEC05	22AUG04	22JUL02	22DEC05

GENERATIONS HEALTHCARE SUED BY DOJ

The US Department of Justice filed suit against Generations Healthcare, a Skilled Nursing Facility, on Friday September 30, 2011. The lawsuit alleges that Generations Healthcare engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on job applicants.

The DOJ’s press release says that its investigation uncovered evidence that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status. These documents were not required of native-born US citizens.

MU Law clients and friends are reminded that US employers have to comply with the Form I-9 when hiring new employees. The Form I-9 identifies a variety of documents that may be used by job applications to prove valid work authorization and identity; it does not mandate that any specific document must be used.

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT

Congressman Jason Chaffetz (R-UT) has just introduced HR 3012, The Fairness for High Skilled Immigrants Act. The bill, if passed into law, would eliminate the per country numerical limitation for employment-based immigrants. The Immigration and Nationality Act generally provides that the total number of employment-based immigrant visas made available to natives of any foreign country in a year cannot exceed 7% of the total number of such visas made available in that year. The bill eliminates this per country percentage cap.

If passed, the Act greatly improves the processing times for Indian and Chinese green card applicants. An unintended consequence of the Act likely would be the slowing of processing for natives of all countries.

The Act is supported by the US Chamber of Commerce, Compete America (a coalition of high tech companies (Microsoft, Google, Oracle, etc.) and various trade groups. The Act has been the primary motivation behind Immigration Voice.

The Act is co-sponsored by House Judiciary Chairman Lamar Smith (R-TX). The bill also adjusts family based visa limits from 7% per country to 15% per country.

Before the Act can become law, it will have to attract more co-sponsors and be recommended for a vote in the US House of Representatives. Once it passes the House, the Act will have to be passed by the US Senate. President Obama almost certainly would sign the Act into law.

THE LEARNING

The US public television network, PBS, has been airing the documentary, The Learning, on local PBS stations around the country. The Learning tells the tale of four Philippine elementary school teachers as they migrate from their Philippine homeland and into inner-city Baltimore. The teachers laugh, cry, dance, and sing their way through their adventure, all the while balancing their love of their homeland with classrooms of unruly children in one of America’s gravest inner cities.

The compelling nature of the quest would make for a tight 90 minutes of viewing regardless of the subject-immigrants, but the radiance of these women raises the documentary to compelling viewing.

Their desire to help family and friends through remittance payments underscores the entire film. The most gripping scene occurs when one of the teachers, Angel, returns to her homeland and has to explain to her family that the American money “does not grow on trees,” as only a beloved schoolteacher can explain. Angel, like her three colleagues, never stops teaching – the children, her family, and we the viewers.

The film is streaming for free through October 20 on PBS’ website – unfortunately the streaming is only available in America. MU Law highly recommends The Learning for any reader of this Blog and anyone interested in first-person accounts of the modern immigrant experience.

NPTE TEST DATES

The NPTE announces these test dates for the next several dates. In order to schedule for one of the two upcoming exams, please click:

October 26, 2011 (Updated 9/19/2011)

December 5, 2011 (Updated 9/19/2011)

NPTE Test Dates
	Test Date	Registration Deadline	Jurisdiction Deadline	Scores Reported
	Oct 26, 2011	Sept 26, 2011	Oct 10, 2011	Nov 2, 2011
	Dec 5, 2011	Nov 5, 2011	Nov 21, 2011	Dec 12, 2011

Future dates in 2012 are available at the FSBPT webpage.

H-1B CAP COUNT: 32,200

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 32,200 H-1B cap-subject Petitions have been receipted by USCIS as of September 9, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 38,000 H-1Bs through September 17, 2010. 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 is compelling evidence that H-1B workers are not 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, since US employers would still want to save money on salary expenses.

OCTOBER 2011 VISA BULLETIN

The Department of State has just released the October 2011 Visa Bulletin. The October Visa Bulletin is the first Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the dates moved up slowly but steadily, averaging a one month improvement.

Oct 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15JUL07	15JUL07	Current
EB-3	08DEC05	08AUG04	15JUL02	08DEC05

The Visa Bulletin included this prediction on future movement of dates:

Employment Second:

Worldwide: Current

China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all Employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.

Mexico: Current
Philippines: Current

Employment Third:

Worldwide: up to one month
China: one to three weeks
India: up to two weeks
Mexico: up to one month
Philippines: up to one month

MU AS AILA FACULTY

MU’s Chris Musillo is one of the three presenting faculty members for the American Immigration Lawyers Association's September 13, 2011 teleconference on Consular Issues impacting Immigration: India, Philippines, and China. Chris will be speaking on hot issues effecting processing at the US Embassy in Manila.

From the AILA new release:

Which are the consular posts that process the highest volume of visa applications? What are the most common issues visa applicants and their attorneys face when dealing with these posts? Are there ways to minimize the stress involved in processing H-1Bs and Blanket L and individual L-1 applications?

The seminar wraps up with a Q&A session and will cover the following topics:

• Common Issues with H-1B, Blanket L and Individual L Applications at Post India
• Common Issues Faced by Applicants In Consular Posts In China
• Overcoming 214(b) at American Embassy in Manila When Seeking a Visa to Take a Licensing Exam
• How to Deal with Delays Caused by Administrative Processing

To register for this teleconference, please visit the AILA website. The teleconference is approved for CLE credits in most states.

PWD UPDATE

The Prevailing Wage Determination (PWD) usually is the first step in the processing of an employment-based green card. This is a necessary beginning step for most occupations, including IT and healthcare occupations. The PWD is filed with the US Department of Labor (DOL).

In July, the DOL ceased processing PWDs as the direct result of a lawsuit affecting their H-2B applications. As a result of that lawsuit the entire PERM and Schedule A green card system has been disrupted.

Until the DOL re-commences the processing of PWDs, PERM and Schedule A green card cases may be delayed. It does appear that the resolution is forthcoming. There are reports that the first PWDs in several weeks have been received by the immigration community. If you have any questions on this, please do not hesitate to contact Musillo Unkenholt.

H-1B CAP UPDATE: 25,300

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 25,300 H-1B cap-subject Petitions have been receipted by USCIS as of August 12, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 30,000 H-1Bs through August 1, 2010. In FY 2009, there was about 47,000 H-1Bs receipted in by USCIS through September 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 is compelling evidence that H-1B workers are not 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, since US employers would still want to save money on salary expenses.

OTR CERTIFICATION EXAM CHANGES IN 2013

The National Board for Certification in Occupational Therapy (NBCOT) has announced that starting July 1, 2013, internationally educated occupational therapists will have new minimum educational standards to be eligible for the OTR Certification Exam. Internationally educated occupational therapists must either:

• Completion of an Entry-Level Bachelor’s Degree in Occupational Therapy from a government authorized and/or WFOT approved college or university occupational therapy educational program AND a Post Professional Masters Degree in Occupational Therapy OR
• Completion of an Entry-Level Master’s Degree in Occupational Therapy from a government authorized and/or WFOT approved college or university occupational therapy educational program

NBCOT’s Occupational Therapist Eligibility Determination (OTED) will be used to determine comparability to US accreditation occupational therapy educational standards and competencies. All internationally-educated occupational therapists approved for exam eligibility under current OTED eligibility standards must take and pass the OTR certification examination prior to July 1, 2013 if they do not hold an occupational therapy master’s degree deemed comparable to a U.S. entry-level accredited master’s degree in occupational therapy. After July 2013, internationally-educated occupational therapists will not be eligible for the OTR if they do not hold a US equivalent occupational therapy master’s degree.

NBCOT is the not-for-profit credentialing agency that provides certification for the occupational therapy profession.

SEPTEMBER 2011 VISA BULLETIN

The Department of State has just released the September 2011 Visa Bulletin. There was very little progress in the dates, which is what usually happens as the US fiscal year nears the end. The US fiscal year's end date is September 30; This is the last Visa Bulletin of the fiscal year.

Sept 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15APR07	15APR07	Current
EB-3	22NOV05	15JUL04	08JUL02	22NOV05

H-1C FAQ

MU Law has had a few follow-up questions about the H-1C visa that was passed by the House of Representatives. We've put together this FAQ to answer a few common questions:

Q1. When does the new H-1C come into effect?

A1. The Senate must still pass the H-1C reauthorization into law and then the President must sign it. There is no set timetable for this to happen. In fact, the H-1C reauthorization may never come into law.

Q2. Will individuals who hold current H-1C visas be able to extend their H-1C status?

A2. They will provided that they have not used up their allotment of H-1C time. Approved nurses will be eligible for to be in H-1C status for 6 years.

Q3. Why are only 14 hospitals eligible?

A3. The H-1C law was crafted in a way to limit sponsorship to certain hospitals that meet a strict set of criteria established in the 1990s. The hospital must be located in a “Health Professional Shortage Area” as of March 31, 1997, have “at least 190 acute care beds,” at “least 35 [percent] of [the facility’s] acute care inpatient days reimbursed by Medicare,” and “at least 28 [percent] of [the facility’s] acute care inpatient days reimbursed by Medicaid.” Other hospitals may be eligible; however, the list of the 14 hospitals that qualify has not been updated in recent years. In a meeting with USCIS and CIS Ombudsman (Oct. 28, 2008), USCIS indicated that, to date, only one hospital that is not on identified on the list of 14 HPSA hospitals has applied for an H-1C nurse and that case is currently pendingadditional review.

Q4. Is there any H-1C cap, like the H-1B visa?

A4. Yes. The H-1C is limited to 300 nurses. However the cap has never been reached. According to USCIS, no H-1C visas were approved in FY 2006, 49 were approved in FY 2007, and, approximately 110 were approved in FY 2008.

Q5. Which 14 hospitals qualify for sponsorship?

A5. Here are the 14 hospitals:

1. Beaumont Regional Medical Center, Beaumont, TX

2. Beverly Hospital, Montebello, CA

3. Doctors Medical Center, Modesto, CA

4. Elizabeth General Medical Center, Elizabeth, NJ

5. Fairview Park Hospital, Dublin, GA

6. Lutheran Medical Center, St. Louis, MO

7. McAllen Medical Center, McAllen, TX

8. Mercy Medical Center, Baltimore, MD

9. Mercy Regional Medical Center, Laredo, TX

10. Peninsula Hospital Center, Far Rockaway, NY

11. Southeastern Regional Medical Center, Lumberton, NC

12. Southwest General Hospital, San Antonio, TX

13. St. Bernard Hospital, Chicago, IL

14. Valley Baptist Medical Center, Harlingen, TX

HOUSE PASSES H-1C REAUTHORIZATION

The House of Representatives just has passed a reauthorization of the H-1C visa program. HR 1933 was first introduced by Rep. Lamar Smith (R-TX) this past spring. Rep. Smith quietly has been securing votes since the bill's introduction. The H-1C expired in December 2009.

HR 1933 looks similar to past iterations of the H-1C visa. Notably it appears to only apply to 14 hospitals in the U.S., many of which are in Rep. Smith's home state of Texas. Only 300 RN positions per year are authorized under the H-1C. The H-1C also includes wage protections for U.S. workers.

Because the H-1C is applicable to only 14 hospitals, the visa has never been used widely and is not expected to materially impact the processing of any immigrant (EB-3) visas. That having been said this is good news for those nurses whose visas expired under the previous H-1C.

Next, the bill must be introduced in the Senate. Once introduced the Senate must pass the bill. Pres. Obama is expected to sign the bill if it can garner enough votes in the Senate.

MANILA VISA REISSUANCE PROGRAM

The US Embassy at Manila just has announced the establishment of a Non-Immigrant Visa Re-issuance program. The purpose of the program is to allow some applicants an expedited visa issuance process if they have previously held the visa that they are seeking to extend.

If one qualifies for the program, an applicant needs only to schedule an appointment, appear at the Embassy at the appointed time, and then have the application screened and give 10-print finger scans. The applicant will not have to participate in an interview.

At this time it does not appear that the VRP will be available to H-1B holders because of a condition that one did not stay in the US for more than 6 months. Here is the full list of conditions:

1. I am a Philippines passport holder.

2. I have previously been issued, in Manila, a full-validity visa (a visa good for five or ten years).

3. My visa is still valid... or it has expired within the last twelve months.

4. I have in my possession all of my passports covering the entire period of time since I received that full-validity visa.

5. I have not been refused a U.S. visa in the last twelve months.

6. My visa is not annotated "clearance received".

7. I have not ever stayed in the U.S. longer than 6 months (even if the Department of Homeland Security approved the extension of stay).

8. I have not ever been arrested or convicted for any offense or crime, even if subject of a pardon.

9. I can provide the visa control number from my visa (located in the upper right hand corner of the visa).

MU LAW AND THE PNAA - 2011

For the last two years, MU Law has sponsored the Philipine Nurses Association of America's 5K fun run at their Annual Convention. This year's Convention and fun run was in San Francisco.

MU Law is honored to be associated with such a great organization. Visit the MU Law Facebook page for more photos of this event.

AUG 2011 VISA BULLETIN

The Department of State has just released the August 2011 Visa Bulletin. Each category was promoted about one month.

Aug 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15APR07	15APR07	Current
EB-3	01NOV05	08JUL04	01JUN02	01NOV05

MU ATTORNEYS TO SPEAK AT IACC

Chris Musillo and Cindy Unkenholt are the featured speakers at the Indian American Chamber of Commerce's July meeting. Chris and Cindy will be speaking on employment-based immigration. If you are in Cincinnati and interested in attending, please visit the IACC webpage.

USCIS OMBUDSMAN REPORT

The USCIS Ombudsman is tasked with monitoring USCIS practices and recommending improvements to USCIS practices. Annually the USCIS Ombudsman produces a report. In early 2009, the Ombudsman made specific recommendations to the USCIS in order to enhance the processing of Schedule A green card applications. Schedule A, which provides an expedited green card application process, is limited to registered nurses and physical therapists.

The Ombudsman’s latest report has just been released. The Report contains many suggestions for improvement of USCIS processes and procedures. While MU has not fully read and considered all of the Ombudsman’s recommendations, one item did catch our eye.

In addition to other outreach initiatives, the Ombudsman’s Office will host its first annual conference on October 20, 2011. This conference is expected to provide an opportunity for government and private sector leaders to come together to discuss immigration issues that impact individuals and employers. MU commends Director Mayorkas, Ombudsman January Contreras, and their team for their continued dedication to outreach with US employers and other immigrant stakeholders.