PHILIPPINE NURSING SUPPLY CONTINUES TO GROW

The Philippines continues to produce nurses, in spite of a global recession entering its fifth year.  GMA News reports that the Philippines produced about 100,000 nurses last year, about triple the Philippines 36,000/year need.

This is not unusual for a country that acknowledges that overseas employment is a key part of its government policy.  The natural result of educating a greater number of nurses is that the licensure pass rates of the nurses will decrease.    The Philippine nursing will need to make sure that the quality of the education does not suffer as the volume of nursing students increases, which is certain to happen in the next few years.  These schools traditionally have been good at adapting to these macro-economic labor trends.  There is no reason to think that they won't be in the future.  

115,000 H-1Bs . . . OR EVEN MORE?

The news around Comprehensive Immigration Reform is moving at a breakneck pace.  On Tuesday, President Obama will speak in Las Vegas.  This is expected to be the launch for the President’s plan for Comprehensive Immigration Reform.  The President is firmly behind CIR and likely will sign any bill that legalizes most or all of the 12 million or so undocumented. 

The House of Representatives was expected to be a different story.  Unlike the Senate, which is controlled by the President’s Democratic party, the House is controlled by the Republicans who were expected to put up a bigger fight on immigration. 

Yet, in a closed door meeting on Friday, Speaker John Boehner (R-OH) told the Ripon Society that a group of dedicated policy wonks and politicians have been meeting on and off for three or four years and that, “Frankly, I think they basically have an agreement”.

As if that weren't encouraging enough, Computerworld reported on Friday that a bipartisan group of influential Senators were ready to introduce a high-skilled immigration bill, the Immigration Innovation Act,  that calls for the H-1B cap to increase to 115,000 per year, from its current 65,000.  The H-1B cap would contain a “market-based escalator” that would increase or decrease the H-1B cap as employer-demand ebbed and flowed, although it could never fall below the 115,000 threshold.  

Things are moving very fast in immigration.  If you are in healthcare and want to be sure that this once-in-a-decade opportunity to influence immigration legislation is not missed, please contact MU Law.  We are working with a dedicated group of industry leaders to push for positive immigration reform in healthcare, but we need more help.

S.1 IMMIGRATION REFORM THAT WORKS FOR AMERICA’S FUTURE ACT

In the forthcoming weeks, Sen. Reid and the Democrats and Sen. Rubio and the Republicans will begin to shape their immigration legislation language.  It is an open secret that the legalization of the approximately 12 million undocumented will entirely drive the politics of the legislation, but there is a real opportunity for Congress to fix other immigration policy failures, such as immigration for shortage occupations.  Let’s hope that Congress takes this opportunity and doesn't merely cling to symbols.

Sen. Harry Reid (D-NV) this week introduced the wordy, Immigration Reform That Works For America’s Future Act.  This Act is the first bill in the Senate, which is symbolic and encouraging.  That having been said, it is only a “placeholder,” meaning that there is no substantive language attached to the bill at this time.  Politicians like Sen. Rubio (R-FL) are beginning to turn their policy statements into textual law that should be voted on by Congress in the next few months. 

WILL CIR INCLUDE NURSES?

With Sunday's re-inauguration of President Obama, he begins the second and last of his two terms.  He has targeted Comprehensive Immigration Reform as one of his major policy initiatives. Republicans appear to be willing to cede from their traditional anti-immigration positions.  Sen. Marco Rubio (R-FL) has made immigration reform his pet cause.  

The US Chamber of Commerce is pushing for high-skilled visa liberalization.  Professional nurses and Physical Therapists have been listed on the Department of Labor's Schedule A since 1980.  Schedule A is limited to those occupations that the Department has "determined there are not sufficient United States workers who are able, willing, qualified, and available for the occupations."

In spite of this obvious shortage, it still takes fully qualified Registered Nurses between 7-10 years to obtain US green cards.    A fully qualified nurse has passed an English fluency examination and the relevant state's licensing examination. This is an insane policy decision for an occupation that according to the Occupational Outlook Handbook, is expected to grow 26 percent to 2020, faster than the average for all occupations.

Politicians like Sen. Rubio are beginning to turn their policy statements into textual law that should be voted on by Congress in the next few months.  Advocacy organizations have begun to lobby politicians.  Readers of this blog who are concerned about this issue should contact Musillo Unkenholt, so that we can put you in touch with people who have already begun to educate Senate staffs.  Change will only happen with an effort.

POEA Q&A

The Philippine Overseas Employment Administration is the Philippine government's agency dedicated to managing the outflow of Philippine workers to countries around the world.  The POEA is specially charged with protecting the rights of Philippine workers, as well as promoting the deployment of Philippine workers.  It regulates both foreign recruiting agencies and monitors the workers' jobs, insuring fair pay and fair working conditions.

POEA Administrator Hans Leo J. Cacdac will be answering questions via Twitter on January 22, 2013 at 3PM Manila time.  Questions may be sent to: http://twitter.com/askPOEA.

While your on Twitter, you can give MU Law a follow too!

DOS ON-LINE TRACKING

The Department of State has launched an on-line tracking system for petitions and application that are being processed through their agency.  DOS cases include all Consular /Embassy appointment cases, notably immigrant visas (green cards) where the applicant has to have an interview at an overseas Consulate/Embassy.    It is expected that all applications that funnel through the National Visa Center will be accessible via this on-line system.

FEBRUARY 2013 VISA BULLETIN

The Department of State has just released the February 2013 Visa Bulletin.  

Overall, the news remains disappointing.  India EB-2 remained at September 1, 2004 for the fourth month.  The Philippine EB-3 date was equally disappointing, moving just one week, to August 22, 2006.

On the other hand, All Other and Philippine EB-2 dates remained Current.  The All Other EB-3 jumped continued to steadily progress, improving more than one month. 

 As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

February 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15JAN08	01SEP04	Current
EB-3	15MAR07	15NOV06	15NOV02	22AUG06

OT PROFESSION NOW REQUIRES A MASTERS

The Occupations of Physical and Occupational Therapy are in educational transition.  About ten years ago, the Commission on Accreditation in Physical Therapy Education began the transition for Physical Therapists.  CAPTE currently requires a Master’s Degree for entry into the profession.  The standard will rise to a Doctorate Physical Therapy on January 1, 2016.

Occupational Therapy is going through a similar transition.  All new Occupational Therapist Eligibility Determination applicants who do not hold a master’s degree in occupational therapy must have an OTED application with payment to NBCOT postmarked by January 1, 2013.  Effective January 2, 2013, only applicants with a master’s degree in occupational therapy will be able to apply to the OTED review process and, if deemed eligible, take the NBCOT certification exam.

CTRL-ALT-DELETE

With the new year comes a new Congress.  A new Congress means that all pending legislation is scrapped and must be reintroduced.  This is the US Constitution's provision that calls for a Congressional reboot every two years.  It was the founding father's version of pressing CTRL-ALT-DEL.

This may be less worrisome than it appears.  Any bills that have any chance of passing the new Congress will be reintroduced in short order.  

Last year at this time, MU Law looked at some bills that might see the light of day.  Although ultimately none did pass, we did caution that "the odds are against these bills passing are long."  What happens in 2013 is still an open question.

President Obama reportedly will make immigration reform a major push in 2013.  The big debate is the legislative push will be for a comprehensive immigration package or whether a series of smaller, piecemeal immigration bills are pushed.

ANALYSIS OF A $4.5 MILLION H-1B VERDICT

A 2010 lawsuit has finished its trial stage, resulting in a $4.5 million verdict in favor of 350 Philippine teachers who had been recruited to work on H-1B visas in Louisiana.  The jury found that the twin recruiting firms – Universal Placement International, based in Los Angeles, and its sister organization, Manila-based PARS International Placement Agency – violated a number of laws.  The teachers’ case was supported by the Southern Poverty Law Center, the American Federation of Teachers, and the mega-law firm Covington & Burling.  The case is captioned, Mairi Nunag Tanedo et al v. East Baton Rouge Parish School Board et al.  The case is a strong blow against unscrupulous recruiters.

But what did the Court really find with this decision?  And how can H-1B recruiters and employers who want to stay within the law learn from this decision.

We start with an Inquirer.net article from last year that explains the allegations. 

The applicants were interviewed and were asked to pay $5,000 upon submission of their documents.  Petitions for working visas (H1B) for the teachers were processed through the recruitment agency. When these were approved and the applicants concluded their interview with the US Embassy, the teachers were asked to pay an additional $10,000. Failure to pay the additional sum, they were told, would result in forfeiture of the first $5,000 and the teachers would not be permitted to travel to the US. 

The facts were concisely summed up in a May 2011 preliminary Order issued by US Judge Andrew J. Guilford in this case,

Enticed by promises of lucrative and exciting employment through a work program, a foreign worker speaks with recruiters about working in the United States. The recruiters explain the terms and costs of the work program, and the worker gets a large loan and voluntarily uses it to join the program.

After the worker joins the program and begins employment, the worker becomes unhappy. But if the worker quits, awaiting is a trip home with a massive amount of debt that will be impossible to repay. Working in the program is the only way to repay the loan. Is this forced labor? Fraud? No. It is a bargained-for exchange. Despite the worker's unhappiness, the terms and costs of the program were known, and the worker voluntarily obtained the loan to join the program. The worker's eventual discontent does not transform the valid contract with the recruiters into something illegal.

But what if after the worker made the payment, the recruiters alter the program terms and costs? The recruiters demand an additional payment of double what the worker has already paid. They threaten to kick the worker out of the program if additional payments aren't made, and they keep the initial payment even if the worker decides to leave to program. The worker is therefore faced with a choice of forfeiting the first payment, knowing that repayment of the debt may be impossible, or paying the additional money the recruiters now demand. Knowing that working in this program is the only way to repay the initial debt, the worker pays the additional sum and continues working in the program.

Once the worker begins employment, complaints about the payments and working conditions are met with continued threats of termination and deportation. Knowing that this job is the only way to repay the debt, the worker remains silent and continues working. Is this forced labor? Fraud?

These are the questions now before this Court.

The SLPC’s December 18, 2012 press release implies that the court’s decision was based on the fact that the teachers were “lured to teach in Louisiana public schools and forced into exploitive contracts.”  This press release seems to back away from the SLPC’s initial claims of “human trafficking, racketeering and fraud.” 

And so the conclusion appears to be that the Court found the initial contracts acceptable, but did not like the bait-and-switch component of the future forced employment contracts.  It is unclear to me at this time, whether the claims of racketeering and human trafficking were part of the court’s decision or not. 

But that analysis may have to wait.  This Blog will be silent until year’s end as we enjoy the Holidays with our friends and families.  Musillo Unkenholt wishes all of our readers a wonderful Holiday season!

JANUARY 2013 VISA BULLETIN

The Department of State has just released the January 2013 Visa Bulletin.  

Overall, the news again was disappointing.  India EB-2 remained at September 1, 2004 for the third month.  Our projection that the India EB-2 number will move forward is looking wrong, although the basis for the projection is the same: earlier big movements tend to lead to later big movements.  

The Philippine EB-3 date was equally disappointing, remaining at August 15, 2006.

The good news category included news that the All Other and Philippine EB-2 date remained Current, and that All Other EB-3 jumped ahead two months.  As MU Law mentioned last month, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

January 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08DEC07	01SEP04	Current
EB-3	01FEB07	22SEP06	08NOV02	15AUG06

IS H-4 EAD WORK AUTHORIZATION ON THE HORIZON?

An Executive Order Review Search reveals that the USCIS may be finalizing a rule that will allow work authorization for H-4 spouses if they have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313 (American Competitiveness in the Twenty-First Century Act of 2000 or AC21).

 

This proposal was first prominently suggested in May 2012 in the U.S. Department of Homeland Security Retrospective Review of Existing Regulations – Progress Report.  Most people, MU Law included, did not think that action would come quickly, if ever, in spite of an official White House Response to a petition for such authorization earlier this year.  Nonetheless, this authorization is long overdue and it is encouraging that President Obama’s administration is following through on its promises to produce favorable uncontroversial immigration legislation and regulation.

NPTE EXAMS AND DEADLINES FOR 2013

As the calendar is turning to 2013, MU Law reminds readers to schedule their 2013 Physical Therapy NPTE exams.  The FBSPT has produced a chart that lists the relevant test date deadlines.  We reproduce it here for readers.

Keep in mind that the FSBPT uses a fixed-date testing scheme.  The FSBPT approach is different than other healthcare occupation's examination processes, which allows for rolling testing dates. FSBPT believes that their fixed-date testing system provides the most secure exam for their industry.

Be sure to register well in advance in order to insure that your seat is reserved.

Test Date	Registration Payment Deadline	Jurisdiction Approval Deadline	Seats are reserved for PT candidates until:	Scores Reported to Jurisdictions
January 29, 2013	December 22, 2012	December 31, 2012	January 8, 2013	February 5, 2013
April 30, 2013	March 23, 2013	April 1, 2013	April 9, 2013	May 7, 2013
July 24, 2013	June 17, 2013	June 24, 2013	July 3, 2013	July 31, 2013
October 30, 2013	September 23, 2013	September 30, 2013	October 9, 2013	November 6, 2013

TOEFL NO LONGER REQUIRED FOR OTED

The National Board of Certification for Occupational Therapists (NBCOT) recently confirmed that the Test for English as a Foreign Language (TOEFL) will no longer be required to complete the Occupational Therapists Eligibility Determination (OTED) process.  In other words, an English fluency exam is not required prior to an applicant’s test date.

Applicants should keep in mind that if they want to work in the United States, they will require a Visa Credential Verification Certificate (VCVC) or a Visa Screen at the time of their visa interview.  The visa interview is usually the last step in the immigration process.  The VCVC can be applied for through the NBCOT and the Visa Screen can be applied for through CGFNS.  Federal law requires that before a VCVC or Visa Screen is issued, an English fluency exam must be obtained.  For the VCVC, the minimum passing score for the TOEFL is defined as 89 for the Internet-Based Test, and 26 for the Speaking portion of the test.

INDIAN NATIONALS MAY AVOID VISA INTERVIEW

The US Embassy-India has begun a program where H-1B renewal applicants in India no longer need to attend a visa interview for their H-1B visa extension.  This waiver of the interview process is a welcome relief for Indian nationals who increasingly have had difficulty extending US H-1B visas.

The new program allows repeat travelers who are extending their H-1Bs to avoid the visa interview if the prior visa is in the same classification with the same petitioner and is still valid or expired within the last 12 months.

Applicants for this visa interview waiver programs may apply on the US Embassy – New Delhi website.

Applicants must meet these criteria:

If you can answer “yes” to the following questions, you qualify for the Interview Waiver Program “Dropbox” at one of the 11 service centers.

·         I received my visa after November 1, 2008
·         I have a previous U.S. visa in the same class as the visa for which I wish to renew
·         My previous visa was issued in India
·         My most recent visa (in the same visa class for which I am applying) was issued on or after my 14th birthday
·         I have no refusals for a visa in any category after my most recent visa issuance
·         If I am applying for a B1/B2, C1D, F, or J visa, my prior visa in the same classification is still valid or expired within the last 48 months
·         If I am applying for an H or L (individual) visa, my prior visa in the same classification with the same petitioner is still valid or expired within the last 12 months. Note: L (Blanket) visa does not qualify.
·         My prior visa is not annotated “Clearance Received”
·         My most recent visa (in the same visa class for which I am applying) was not lost or stolen

The webpage contains this Note: Using the interview waiver or drop box service does not guarantee visa issuance. In some cases, you may be required to appear for a visa interview at the U.S. Embassy/Consulate, for example, if you submit an incomplete and/or inaccurate application. Submit your application well in advance of your planned travel to allow for the possibility that a visa interview will be necessary.

Other visa categories may also apply for the waiver of an interview:

·         Business/Tourism (B1 and/or B2);
·         Dependent (J2, H4, L2)
·         Transit (C) and/or Crew Member (D) - including C1/D.
·         Children applying before their 7th birthday traveling on any visa class
·         Applicants applying on or after their 80th birthday traveling on any visa class
·         Children applying before their 14th birthday traveling on any visa class
·         Students returning to attend the same school and same program
·         Temporary workers on Individual L1-A or Individual L1-B visas

NFAP TELLS CONGRESS: GROW NUMBER OF HEALTHCARE VISAS

On the heels of Congressional leaders announcing that they are considering Comprehensive Immigration Reform that could increase the number of employment-based visas, the National Foundation for American Policy (NFAP) has just released a 27 page detailed Report, "U.S. Government , Heal Thyself : Immigration Restrictions and America’s Growing Healthcare Needs".  The NFAP Report's recommendations include:

1)   Expand the number of employment-based green cards so the wait times for skilled immigrants, including nurses, physicians, and physical/occupational therapists, can be measured in weeks or  months,  rather than in years or decades.

2)   Establish a temporary visa that facilitates the entry of foreign nurses. Current temporary visas do not work for the vast majority of foreign nurses and their potential employers.

3)   To aid patients in under-served areas and enable more U.S.-trained doctors to pursue specialized medical fields expand the Conrad 30 program to include many more physicians per state and in the country as a whole. Also, we should consider policies to overcome the limitations on medical residency slots in the U.S. by developing guidelines to allow foreign-trained doctors to practice in the United States if they can demonstrate  a  high  level  of  expertise.  Congress  logically  should  include  physicians  and  medical researchers  in  biology  and  chemistry  in  the  definition  of  Science  Technology   Engineering   and Mathematics (STEM) for exemption from employment-based green card quotas in future legislation.

4)   Streamline  state  licensing  and  other  procedures  for  foreign  medical  personnel,  including  physical therapists and occupational therapists, to help with the nation’s long-term health needs.

The report makes a compelling argument.  It explains how staffing shortages lead to dire consequences for US patients and how these staffing shortages are not being served by US workers.  These staffing shortages will remain for the foreseeable future, given greater demand for smaller nurse-patient ratios, a paucity of instructors, the graying of the existing workforce, and other institutional factors.

The Report details the present visa options and the failure of these options to satisfy healthcare staffing needs.  The failures of the H-1B, TN, and current green card programs to adequately address these staffing shortages are fully explained in the NFAP Report. (One quibble: the Report lists the H-1C visa as "reauthorized", which it was; it subsequently expired in 2009, thus taking yet another option off of the table.)

The Report is chock full of data and should be required reading for anyone in the industry and ought to be on the desk of any Congressional staff who are looking to establish policy initiatives aimed at a significant gap in the current US immigration policy. 

CONGRESS TO CONSIDER CIR (ASAP?)

With the election cycle over for at least a little while, it is now time for each party to see what worked and what didn't work in the just-passed election cycle.  And it's pretty clear that the Democrats immigration-friendly policy was a winner and the anti-immigration rhetoric from the Republicans was not.

As we asked last week: Now What?  The answer is that the Republicans have done an immediate 180 degree turn.  Already Sen. Graham (R-SC) has announced that he will work with Sen. Schumer (D-NY) to revisit their shelved 2010 Comprehensive Immigration Reform (CIR) bill, which was torpedoed when the Democrats moved ahead with their healthcare initiatives, driving the Republicans into their do-nothing mode.  

Now?  H-1Bs, Green cards, STEM occupations all may be in play.

Back in 2010, the bill was called CIR ASAP (Comprehensive Immigration Reform for America's Sceurity and Prosperity). The CIR ASAP bill had these characteristics:

- Recapture of all Immigrant Visas (Family & Employment) from 1992-2008.

- STEM occupations exempt from the Immigrant Visa numbers.

- Immediate relatives exempt from Immigrant Visas quotas (this could be enormous and would be responsible for slicing the immigrant visa retrogression backlogs);

- Increases the per country visa cap, thus ameliorating the Indian, Chinese, and Mexican retrogressions;

- Spouses and Children of LPRs are Immediate Relatives and therefore IV quota-free;

- Employers have affirmative obligation to report recruiters working on their behalf and can be held liable for the crimes of the recruiter;

- Before an employer can hire an H-1B worker, the employer must meet strict requirements for the recruitment of American workers. This would also likely help Healthcare Petitions since the Healthcare staffing shortages are well-documented.

DECEMBER 2012 VISA BULLETIN

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

Overall, the news was disappointing.  India EB-2 remained at September 1, 2004.  MU Law expects the India EB-2 number to move forward, although we are surprised that the progression did not happen with this Visa Bulletin.  The Philippine EB-3 date was equally disappointing, progressing by only one week.

On the bright side, the All Other and Philippine EB-2 date remained Current.  We expect this number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

December 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	22OCT07	01SEP04	Current
EB-3	22DEC06	01JUL06	01NOV02	15AUG06

NOW WHAT?

President Obama has been re-elected for a second four year term.  The Senate and House of Representatives largely have been kept in tact  As usual, immigration reform is expected to be hotly debated.  Republicans may be willing to cede from their traditional anti-immigration positions, in light of post-election analysis saying that their position is really hurting them with the Latino vote.  It was President George W. Bush's relative success with the immigrant community that propelled him to his two victories.

The obvious place to start would be with employment-based immigration, specifically with immigration for workers in occupational zones that are unfilled by American labor.  Professional nurses and Physical Therapists have been listed on the Department of Labor's Schedule A since 1980.  Schedule A is limited to those occupations that the Department has "determined there are not sufficient United States workers who are able, willing, qualified, and available for the occupations."  

In spite of this obvious shortage, it still takes Physical Therapists several years to obtain US green cards.  For nurses, it's much, much worse.  A fully qualified nurse who has passed an English fluency examination and the relevant state's licensing examination must wait approximately seven years to obtain the green card.  If the nurse is Indian, the wait is ten years. This is ridiculous.

The President ought to be able to get the votes to end these delays, which hurt US patients and make intending immigrants question America's desire for their badly needed talent.

EB-2 FOR PHYSICAL THERAPISTS

As we have blogged about in the past, the USCIS' inconsistently adjudicates EB-2 petitions for Physical Therapists.   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.

The USCIS recently addressed the applicability of FCCPT educational evaluations:

Response: USCIS considers FCCPT evaluations. However, these evaluations are not binding on USCIS. USCIS will continue adjudicating these filings on a case by case basis. Whether the physical therapists are indeed eligible for EB-2 classification depends on the individual facts of each case. 

MU Law has been working with AILA on this issue for about one year, helping AILA frame the issue for the USCIS.  While the specific language of this Reply is less than ideal, we’re optimistic that the USCIS is beginning to understand the value and credibility of an FCCPT evaluation.  We expect to see more favorable evaluations for properly prepared I-140 EB2 Petitions in the future.