PNAA ANNUAL CONVENTION

The Philipine Nurses Association of America holds their 33rd Annual Convention this week in San Antonio. The mission of the PNAA is to uphold the positive image and welfare of its constituent members; promote professional excellence and contribute to significant outcomes to healthcare and society. Over their long history, the PNAA has accomplished their goals. With events such as the Annual Convention, they continue to make an enormous contribution to American healthcare excellence. Musillo Unkenholt congratulates the PNAA on another successful year.

EB2 WILL BE CURRENT OCTOBER 1, 2012

The Department of State’s Visa Office head Charlie Oppenheim met with the American Immigration Lawyers Association on June 19, 2012 to discuss the recent retrogression of EB-2 dates in All Other Countries, including the Philippines. Mr. Oppenheim has confirmed that he expects that the All Other Countries EB2 date will return to Current on October 1, 2012, which is the beginning of US Fiscal Year 2013.

Readers should note that the All Other EB-2 date shortly will become Unavailable. This will not impact the Current date on October 1, 2012.

Mr. Oppenheim also confirmed that EB-2 China and India will be August/September 2007 on October 1, 2012. He expects that the India and China EB-2 dates will remain in 2007 for the first several months of FY 2013.

US v. ARIZONA: WHAT DOES IT MEAN FOR EMPLOYERS AND EMPLOYEES?

On Monday,the Supreme Court of the US (SCOTUS) released its long-anticipated decision in Arizona v. US.The state of Arizona had sought to usurp the federal government’s authority toregulate immigration. SCOTUS largely declawed Arizona’s wildcat attempts.

As a resultof this decision, MU suggests that foreign nationals in Arizona should carrydriver’s licenses. SCOTUS specificallysaid that drivers licenses are valid proof of lawful status. If you do notdrive, you should contact your local Bureau of Motor Vehicles, which can issueyou a state identification non-driving license.

If you reside in other states where Arizona-style laws have been enacted, such as Iowa, Alabama,and Utah, you are also encouraged to get a driver’s license or state-issuedidentification. If your driver's licensehas expired and has not yet been renewed, please carry your I-797 Notice ofAction (Approval Notice) and/or Receipt Notice.

Foreignnationals are reminded that they are required to carry validpassports while in the US.

All of Arizona’s attempts to regulate immigration were struck down,save one. For employers and employees living and working in Arizona these arethe key points:

• Arizona cannot create its own state-based crime of “illegally working”. Only the federal government can create a crime of “illegally working”. And the federal government has. Of course, all US employers – Arizona and elsewhere – must comply with the Form I-9 rules.

• Arizona police officials cannot randomly stop and ask immigrants for papers. This is an important point and one that has not been well-articulated in the media.

• In order for an Arizona police officer to ask to see their immigration documents, the police officer must have first have a reasonable suspicion that the person is illegal in the US. That suspicion cannot be based on their race, color of their skin, or their country of their birth. A reasonable suspicion may exist if, for instance, the police officer is tipped off by a credible informant that someone is illegally living/working in Arizona.

Arizona v. US has several other applications that areinteresting, although not directly related to employment:

• SCOTUS has confirmed that immigration is a federal legal area. This likely will tamp down various state efforts to regulate immigrant employment.

• Arizona officials are no longer allowed to create their own Arizona alien registration system, even if it is based on the federal system. Only the federal government can create and regulate a federal alien registration system.

• SCOTUS spent a lot of time on the immigration documents section. SCOTUS indicated that it would not tolerate future Arizona police officers who abused their power and based their suspicions on race, skin color, and origin. If there is abuse by Arizona police officers in the future, SCOTUS may bar Arizona officers from having the right to ever ask for immigration documents.

EB2 FOR THE PHYSICAL THERAPIST

The USCIS has been wildly inconsistent in adjudicating petitions for EB-2 Physical Therapists. But they should not be. The law is straightforward.

If the position requires an Advanced Degree, then EB-2 Petition should be approved. An Advanced Degree is a US Master’s Degree, the foreign equivalent of a US Master Degree, or a Bachelors Degree and five years of progressive work experience.

If the FCCPT or another credible educational evaluator finds that the Beneficiary’s foreign education is equal to a US Masters Degree, then the EB-2 Petition should be approved, since all US employers effectively require an Advanced degree as their minimum requirement for entry into the petition.

Many foreign schools issue a diploma that says “Bachelors Degree in Physical Therapy”. Many of these degree are, in fact, equal to US Masters Degrees and therefore approvable as EB-2 Petitions.

Unfortunately, the USCIS Texas Service Center has a training issue and some USCIS officers are denying these approvable EB-2 Petitions. Their flawed analysis is that since the degree is titled Bachelors Degree, the petition is inappropriate as an EB-2. This is wrong. The legal question isn’t the title of the degree but the US educational equivalence.

The most frustrating part of Physical Therapy EB-2 Petitions is the maddening inconsistency caused by the USCIS training issue. Virtually identical petitions will get different USCIS Decision: some denied and some approved. MU Law has several of these petitions on appeal and we are working with AILA to remedy this flawed training problem.

For now, the safer approach is to use the Bachelors Degree plus five years’ experience path to a Physical Therapist EB-2 Petition.

EB-2 RETROGRESSION FAQ

Many MU clients are perplexed by the announced July 1 retrogression of the EB-2 visa category. In this blog post, we will address some common questions that we have seen. If you have additional ones that you would like to see addressed, please post your questions as a comment or ask the question on the MU Facebook page.

CAN I FILE MY I-485, ADJUSTMENT OF STATUS PRIOR TO JULY 1?

In most instances, yes. I-485, Adjustments of Status may be filed for EB-2 petitions prior to July 1. Please let us know if you wish to do so. Any I-140 that has been approved or is currently pending qualifies. Because of the inconsistent decision-making by USCIS for EB-2 Masters-equivalent petitions, we may advise against it in any one case. We will be addressing this inconsistency in an upcoming blog posting.

HOW LONG WILL THIS RETROGRESSION LAST?

Our sense is that the retrogression will only last until October 1, 2012, at which point the new US fiscal year begins and more visas are allowed to be processed. What remains unknown is whether the retrogression will reappear in the fall of 2012. This will not be known until the Department of State assess just how great the demand is for EB-2 visas.

SHOULD I UPGRADE MY I-140 TO PREMIUM PROCESSING?

Probably not. An upgrade to premium processing is expensive ($1,225) and only guarantees that the USCIS will review your I-140 in 15 days, which takes us beyond the July 1 retrogression date.

CAN I FILE MY I-485 BUT NOT FILE MY SPOUSE/CHILDREN’S I-485?

Yes, these can be filed separately. Some applicants may want to just file their I-485 Adjustments of Status and then file their spouse/children’s I-485 Adjustments of Status at a later date. The spouse/children’s priority date must be current at the time that you desire to file their I-485.

JULY 2012 VISA BULLETIN AND THE FUTURE OF EB-2

The Department of State has just released the July 2012 Visa Bulletin.

In the June Visa Bulletin, the Department of State made the India and China EB-2 categories unavailable (indicated by a "U", in the chart below), as had been expected for some time. Now, the DOS has made the All Other and Philippine EB-2 categories retrogressed to January 1, 2009. Plainly the Department of State and the USCIS are having troubling anticipating demand for visa numbers, which is leading to these enormous swings in visa dates.

July 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	01JAN09	U	U	01JAN09
EB-3	22JUL06	22SEP05	22SEP02	08JUN06

So what will happen in future months to EB-2. MU Law believes that the EB-2 will continue to be retrogressed until October 1, 2012. The August or September 2012 Visa Bulletin likely will become unavailable at some point, although it should be temporarily.

Come October 2012, MU Law expects that All Other EB-2 (including the Philippines) will become Current, or nearly Current. October 1, 2012 is the start of the next US Fiscal Year and more immigrant visas are available for processing. The NVC may continue to process EB-2 petitions in the later summer, anticipating more favorable dates in the fall.

If you have an immigrant visa interview through June 30, you should continue to attend that interview, and you will be given a visa provided that you qualify and pass the interview process.

AILA WEEK

MU attorneys Chris Musillo, Cindy Unkenholt, and Maria Schneider will heading to Nashville for this year's AILA Annual Convention. AILA Annual is a great time to catch up with old friends, meet new ones, and discuss interesting case strategies. We may be posting light this week, but we will surely update once the H-1B cap officially is reached. Our sense is that it either has already been reached or it will be reached early this week.

H-1B CAP COUNT: 55,600

The H-1B cap count is now at 55,600 H-1B cap-subject petitions have been received as of June 1, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 8.

MU clients are encouraged to initiate their H-1B Petitions immediately in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

Employees that need a "cap-subject" H-1B 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

* Prospective international employees currently living abroad

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	55,600	6/1/2012	6/8/2012
US Masters	20,000	18,700	6/1/2012	6/8/2012

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H-1B CAP COUNT: 48,400

The H-1B cap count is now at 48,400 H-1B cap-subject petitions have been received as of May, 25, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 13.

MU clients are encouraged to initiate their H-1B Petitions immediately in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

Employees that need a "cap-subject" H-1B 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

* Prospective international employees currently living abroad

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	48,400	5/25/2012	6/13/2012
US Masters	20,000	17,500	5/25/2012	6/6/2012

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PUSH IN CONGRESS TO INCREASE BUSINESS GREEN CARDS

Quietly there has been a recent push in Congress to increase the amount of business based green cards.  Several different proposals are being considered.  Most will reduce the lengthy green card processing times for healthcare, IT, engineering, and other business-based green cards.  Business based green cards currently take anywhere from one year to ten years, depending on the type of job offered (EB1, EB2, EB3, etc.) and the country of birth of the applicant.  

As Computerworld explains, many of the proposals call for immediate or near-immediate green cards for foreign students who earn a master's degree and above in science, technology, engineering and math (STEM degrees).  The proposals differ in allocation of these visas.  One proposal by Sens. Alexander (R-TN) and Coons (D-DE) allows US STEM graduates to file for green cards after three years of working in the US.  As can be seen by the co-sponsors, this bill has bi-partisan support.

A  bill by Sen. Cornyn (R-TX) eliminates the diversity visa lottery and reserves those visas for US STEM graduates.  Sen. Cornyn's bill has some appeal because it does not add to the total pool of visas, which is major issue for some in Congress.

While these bills target non-healthcare occupations, both bills are expected to help healthcare, in several ways.  First, the language of the bills may still be tweaked to add in some healthcare occupations that are in short supply.   Second, the proposals may allow US government agencies to add or delete occupations as future events warrant.  

Even if no specific healthcare-friendly amendments are added to these bills, the simple process of drawing out thousands of STEM visas out of the general green card pools will reduce retrogression pressures.

FREE SUBSCRIPTION OF AMERICAN NURSE TODAY FOR FENs

CGFNS and the American Nurses Association have entered into an agreement to provide new foreign-educated nurses with a complimentary digital subscription to the ANA's signature publication, American Nurse Today. CGFNS believes that the subscription will allow foreign-educated nurses to learn about the practices and challenges facing nurses in the US. To register for your complimentary subscription, please visit the CGFNS webpage.

H-1B CAP COUNT: 42,000

The H-1B cap count has passed the halfway mark. 42,000 H-1B cap-subject petitions have been received as of May, 11, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 8.

MU clients are encouraged to initiate their H-1B Petitions by May 25 in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

Employees that need a "cap-subject" H-1B 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

* Prospective international employees currently living abroad

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	42,000	5/18/2012	6/8/2012
US Masters	20,000	16,000	5/18/2012	6/1/2012

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AILA ANNUAL DINNER

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Last year we had about 20 of us and it was great to catch up with old friends (and new ones!). It is a laid-back casual event.

If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by May 25. Friends, spouses, etc. are also welcome.

H-1B CAP COUNT: 36,700

The H-1B cap count has passed the halfway mark. 36,700 H-1B cap-subject petitions have been received as of May, 11, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 10.

MU clients are encouraged to initiate their H-1B Petitions by May 25 in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

Employees that need a "cap-subject" H-1B 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

* Prospective international employees currently living abroad

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	36,700	5/11/2012	6/10/2012
US Masters	20,000	14,800	5/11/2012	6/1/2012

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JUNE 2012 VISA BULLETIN

The Department of State has just released the June 2012 Visa Bulletin.

The Department of State finally made the India and China EB-2 categories unavailable (indicated by a "U", in the chart below), as has been expected for some time. It is expected that these categories will progress to 2010 once the new fiscal year begins in October 2012. Chinese and Indian EB-2 petitions are still accepted for I-485 filing through May 31.

June 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	U	U	Current
EB-3	08JUN06	08AUG05	15SEP02	22MAY06

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DEMAND FOR NURSES RISING IN US

Nursing demand in the US has been negligible in the last few years. Fewer nurses have been retiring and facilities’ nursing needs have been stagnate. As a result facilities’ demand for nurses has been flat since the start of the recession. A recent survey says that it appears that this dormant period for nursing needs is over.

As demand for nurses rises, medical practices are paying more to hire them, UBM Medical’s Physician’s Practice 2012 Staff Salary Survey suggests.

Nurses and nurse managers saw average salary increases of 4 percent and 12 percent. Registered nurses posted a 6.6 percent vacancy rate in 2011, up from 4 percent in 2010. Hospitals had 950 RN job openings at the end of 2011 in one market, Cincinnati. Trends are likely similar across the US.

Foreign-trained nurses traditionally filled these needs but the twin-killing engine of retrogression and the recession has decimated the ranks of foreign-trained nurses.

Will the rebounding economy lead to a sensible immigration policy for soon-to-be badly needed nurses? That remains to be seen.

H-1B CAP COUNT: 32,500

The USCIS has just updated the H-1B Cap Count. The latest H-1B usage numbers are listed in the chart below. MU Law is also listing its estimated dates when the H-1B cap will be reached for each category. We will regularly update the projection.

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	32,500	5/4/2012	6/1/2012
US Masters	20,000	13,700	5/4/2012	5/20/2012

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

International workers who are working 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 “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B 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

* Prospective international employees currently living abroad

DS-160 TIPS

A nonimmigrant visa (or temporary visa) is any visa that is not an immigrant visa (green card). Typical nonimmigrant visas include the H-1B, B-1/B-2, L-1, and F-1. If you click on the links, you will find details of each of these visa types.

For foreign nationals who are overseas, the process calls for a filing by the immigration attorney here in the US with the USCIS. Once approved, the USCIS issues an I-797, Notice of Action (Approval Notice). The chosen Consulate or Embassy is then notified of the approval and the Beneficiary makes an application with the Consulate or Embassy.

The applicant must complete a DS-160 Online Nonimmigrant Visa Application. The DS-160 is a confusing Application for some. The US Embassy in Kingston, Jamaica has produced a very helpful Slide Show to assist applicants. MU Law invites our clients and friends to review this before completing the DS-160.

H-1B CAP COUNT: 29,200

The USCIS has just updated the H-1B Cap Count. The latest H-1B usage numbers are listed in the chart below. MU Law is also listing its estimated dates when the H-1B cap will be reached for each category. We will regularly update the projection.

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	29,500	4/27/2012	6/1/2012
US Masters	20,000	12,300	4/27/2012	5/20/2012

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

International workers who are working 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 “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B 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

* Prospective international employees currently living abroad

H-1B CAP COUNT: 25,000

The USCIS has just updated the H-1B Cap Count. The latest H-1B usage numbers are listed in the chart below. MU Law is also listing its estimated dates when the H-1B cap will be reached for each category. We will regularly update the projection.

H-1B Cap Count
Cap Type	Available	Received	Updated	MU Projection
Regular	65,000	25,000	4/20/2012	6/1/2012
US Masters	20,000	10,900	4/20/2012	5/20/2012

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