HISTORICAL H-1B USAGE

This year’s H-1B filing date of April 1, 2014 is coming fast.  MU Law predicts that the USCIS will see as many as twice as many H-1Bs as allowed under the H-1B quota (H-1B cap).  When the USCIS receives more H-1B petitions than slots available it holds an “H-1B lottery”.  Last year, the USCIS held an H-1B lottery for the first time since April 2008 (US Fiscal Year 2009).

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

Many healthcare professions ordinarily qualify for H-1B status, including Physical 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

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 3, 2007
H-1B 2008 (FY 2009)	85,000	April 7, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 5, 2013

APRIL 2014 VISA BULLETIN

The Department of State has just released the March 2014 Visa Bulletin.  This is the sixth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The biggest news is that the Philippine EB-3 number has surged ahead to November 2007, a promotion of almost six months.  Other than that the Visa Bulletin dates remained approximately where they were in the April 2014 Visa Bulletin.

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are EB-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.The Chinese EB-3 mirrors the All Other EB-3.

Employment- Based	All Chargeability Areas Except Those Listed	China - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15APR09	15NOV04	C	C
3rd	01OCT12	01OCT12	01OCT03	01OCT12	01NOV07

US ADDS CHILE TO VISA WAIVER PROGRAM

Effective May 1, 2014, the country of Chile joins 37 other countries who are part of the US' Visa Waiver program.  Chilean passport holders with both an approved Electronic System for Travel Authorization (ESTA) and an e-passport will be able to visit the United States without nonimmigrant visitor visas.  Chilean nationals will no longer have to apply for a B1/B2 visa. 

Chile is one of the most-preferred counties in US immigration.  Not only is Chile now the first Latin American country to qualify for the Visa Waiver program, it is only one of five countries who may avoid the onerous H-1B cap by filing a Trade Visa.

The five Trade Visa Countries are: Canada (TN), Mexico (TN, Australia (E-3), Singapore (H-1B1), and Chile (H-1B1).

USCIS SEEKS INFO ON H-1s FOR RNs

USCIS is asking the public for help on the issue of H-1B visas for Registered Nurses.  In particular the USCIS seeks assistance the questions at the end of this blog posting.

The USCIS will not take case-specific questions or questions on allied healthcare workers.  The question period is through March 7, 2014.

• What current trends and developments in the employment of nurses should USCIS be aware of? For example, have there been recent changes to the minimum educational, experience, training and/or other requirements for entry into certain specific nursing occupations?

• What new or updated USCIS guidance is needed for H-1B nonimmigrant and Schedule A-based immigrant visa petitions for nurses? Are there any recommended changes or updates to the November 27, 2002, USCIS Policy Memorandum on H-1B petitions for nurses, including the list of advanced practice nursing occupations?

• Are there any concerns regarding how USCIS has applied applicable law or policy in adjudicating H-1B nonimmigrant and Schedule A-based immigrant visa petitions for nurses?

• Where is the greatest need for either permanent and/or temporary nurses?

• How are hospitals and medical offices utilizing staffing companies? When a staffing company places a nurse with a hospital and/or a medical office, which entity retains control over the nurse’s employment and what are indicators for that?

MEXICAN TNs NO LONGER NEED USCIS APPROVAL

Traditionally Mexican nationals have had to get pre-clearance from the domestic USCIS prior to applying for their Mexican TN visa.  This has added cost and time to the TN process.  Recently however the US streamlined the process for Mexican TN workers.  Mexican TN workers can now directly apply at the US Embassy or Consulate for their visa. 

The Mexican national should now complete the electronic DS-160 as the first step and include a detailed US Employment Letter.  The letter should include the legal analysis confirming that the offered position is one of the NAFTA occupations listed on NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.  

MU Law advises that the Employment letter includes:

•          Job Title
•          Qualifying profession in which the applicant will be engaging (from the NAFTA Professional Job Series List)
•          Detailed description of proposed employment
•          Location of proposed employment
•          Full or Part-time (specify no. of hours per week)
•          Proposed wages per hour/week
•          Justification for employee with applicant’s profession and duration of proposed employment (explain justification)
•          Type of licensure required for proposed employment  (note: compliance enforcement is the responsibility of local or state authority and lack of licensure is not a basis for visa refusal)

Here is the list of qualified Healthcare Occupations:

Job title	Qualification
Dentist	D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental; or state/provincial license
Dietitian	Baccalaureate or Licenciatura Degree; or state/provincial license
Medical Laboratory Technologist (Canada)/Medical Technologist (Mexico and the United States) 6	Baccalaureate or Licenciatura Degree; or Post-Secondary Diploma or Post-Secondary Certificate, and three years experience
Nutritionist	Baccalaureate or Licenciatura Degree
Occupational Therapist	Baccalaureate or Licenciatura Degree; or state/provincial license
Pharmacist	Baccalaureate or Licenciatura Degree; or state/provincial license
Physician (teaching or research only)	M.D. or Doctor en Medicina; or state/provincial license
Physiotherapist/Physical Therapist	Baccalaureate or Licenciatura Degree; or state/provincial license
Psychologist	State/provincial license; or Licenciatura Degree
Recreational Therapist	Baccalaureate or Licenciatura Degree
Registered Nurse	State/provincial license; or Licenciatura Degree

THE TIME TO PREPARE YOUR H-1B IS NOW

The Fiscal Year 2015 (FY2015) H-1B cap season will begin on April 1, 2014. Last year (FY2014), the H-1B cap was reached on Day One (April 5, 2013 – the USCIS allows any H-1B petition received during the first week to be counted as a Day One filing).

From 2009-11, the H-1B cap remained opened for at least one-half the year.  For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

The FY 2015 H-1B cap demand will be high. After speaking with clients and other immigration attorney-friends, MU Law expects that the H-1B cap will move even quicker than last year.  MU Law would not be surprised if the USCIS receives twice as many H-1B cap-subject petitions as there are slots available.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

Many healthcare professions ordinarily qualify for H-1B status, including Physical 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

2013 NCLEX EXAM WEBINAR SERIES

The 2013 NCLEX Exam Webinar Series has just been published by NCBSN.  The Series includes four modules: NCLEX Test Plan, Scope of Practice, Practice Analysis and Knowledge, Skills and Abilities, NCLEX Item Writing and Item Review, and NCLEX Sensitivity and Differential Item Functioning Review.  Each module is hyperlinked. 

The NCLEX Text Plan webinar provides an overview of the NCLEX Test Plan and the various versions of the Test Plan.  The Scope of Practice, NCLEX Practice Analysis and Knowledge, Skills and Abilities webinar describes the beginning principles in the development of the NCLEX examination.  The Item Writing and Item review Webinar overviews the item development process and the processes of item writing and item review used to ensure the validity, reliability and legal defensibility of the NCLEX exam.  The NCLEX Sensitivity and Differential Item Functioning Review describes the purpose of the processes and the procedures involved with reviewing items for DIF and Sensitivity issues.

DID YOU MOVE AGAIN!?!

Project to project, location to location, client to client.  Many of our clients regularly relocate as their jobs demand.  A reminder that whenever you change your home address, we ask that you contact our office so we can update our records.  Most immigration forms require that we list your home address and we want to make sure that we have your correct address.

In addition to updating our law firm, you’ll need to report a change of address to the USCIS within 10 days of moving.  You can update your address with the USCIS by filing a form AR-11 in hard copy or online.  Please note that if you have an application currently pending with the USCIS you must update your address online to ensure the new address is assigned to your pending application. 

You can obtain the change of address form from the attorney or paralegal handling your case or on the USCIS website.  Complete the information requested on the form, including present address, last address (most recent only), A number or registration (I-94) number, country of citizenship, date of birth, and your signature.  You do not need to include temporary addresses as long as you maintain your present address as your permanent residence and continue to receive mail there.

When filing an AR-11 either online or in hard copy you should always keep a copy of the confirmation page and/or the form itself for your records.  

MARCH 2014 VISA BULLETIN

The Department of State has just released the February 2014 Visa Bulletin.  This is the fifth Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The All Other Countries EB-3 date jumped about 6 months.  It has now moved an incredible 25 months in the last 90 days!   

The Philippine EB-3 numbers also progressed nicely, advancing about 3 months.  This is the  largest EB-3 jump in some time.

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are BE-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.The Chinese EB-3 mirrors the All Other EB-3.

Unfortunately India EB-2 and India EB-3 remained basically stuck at the same dates from the December 2013 Visa Bulletin.   India EB-3 moved one week.

The full chart is at the end of the post.

The Visa Bulletin also included some predictions on future progression:

EMPLOYMENT-based categories (potential monthly movement)

Employment First:  Current

Employment Second:

Worldwide:  Current

China:  Three to five weeks

India:  No forward movement

Employment Third:

Worldwide:  This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little, if any forward movement of this cut-off date is likely during the next few months. 

China:  Will remain at the worldwide date

India:  Little if any movement

Mexico:  Will remain at the worldwide date

Philippines:  Three to six weeks

March 2014 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15FEB09	15NOV04	Current
EB-3	01SEP12	01SEP12	15SEP03	01MAY07

REMINDER: H-1B TELECONFERENCE FEB 12

In anticipation of the H-1B cap filing date of April 1, 2014, MU Law will be holding a free teleconference for our clients on February 12, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Lauren Gramke, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be greater this year.  It is imperative that all H-1B cap-subject Petitions are filled on April 1, 2014 in order to insure that the H-1B Petition qualifies under this year’s H-1B cap.

H-1B cap-subject petitions 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

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

PRES. OBAMA FAILS TO PRESS ON IMMIGRATION . . . AND MAYBE THAT IS THE RIGHT MOVE

Last night, as expected, President Obama signaled the end of S.744 and the beginning of a new version of Comprehensive Immigration Reform in his State of the Union address.  Less than 2 percent of the President’s lengthy speech was about immigration reform.  While some pro-immigration forces may see this as a bad thing, there are others who think that this is the correct approach in the complex game of politics.

The President and the Senate learned last year that nothing can get done without Republican-led House approval.  Rep. John Boehner (R-OH) has taken some quiet steps signaling that he may be serious about immigration reform, including the hiring of Becky Tallent in December 2013.  Ms. Tallent is a long-time advisor to Sen. John McCain (R-AZ) who has repeatedly made reform the United States’ immigration laws a priority.

By not aggressively pushing immigration reform in the State of the Union, the President is allowing Rep. Boehner the breathing room to line up House Republicans on the issue.  The Republicans are not interested in handing the President a political win.  They will only allow an immigration bill to move if they can get the press to report that an immigration bill is Republican driven.  That would never have happened if the President had demanded that Congress put a bill on his desk.

The odds are still long.  Immigration reform is tough.  But the President’s lack of discussion on the issue in last night’s address is yet another move in a long game.

MU VISA ADVISOR: H-1B TELECONFERENCE FEB 12

In anticipation of the H-1B cap filing date of April 1, 2014, MU Law will be holding a free teleconference for our clients on February 12, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Lauren Gramke, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be greater this year.  It is imperative that all H-1B cap-subject Petitions are filled on April 1, 2014 in order to insure that the H-1B Petition qualifies under this year’s H-1B cap.

H-1B cap-subject petitions 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

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

CONSULAR PROCESSING FOR EXPERTS

MU's Chris Musillo is a featured speaker on the Continuing Legal Education panel, Consular Processing for Experts.  Interested attorneys can register for the session at ILW.com.  Discussion topics include: nonimmigrant intent, visa eligibility, preparation for the visa interview, and post-interview issues. 

THE DEATH OF S.744

The internet is abuzz with reports that John Boehner and the House Republicans are in the process of drafting their “principles of immigration reform.”  A document that purports to outline the GOP’s position on all facets of the immigration debate: border security, legalization of the undocumented, modernization of quotas and caps, enforcement, and employment verification. 

The release of the “principles” is the eulogy for last summer’s Senate Comprehensive Immigration Reform bill, Senate Bill 744.  That bill was the result of brokering by Senate leadership from both Republicans and Democrats.  Despite the bipartisan nature of the bill it never was seriously considered by the House – mainly because conservative and tea party House members thought that S.744 was too lenient on punishment for the undocumented.  The Senate Bill called for a minimum of 13 years before citizenship. 

Conservative Republicans other problem with S.77 was they wanted a secure southern border before any material legalization program.  It seems that fully securing the 2,000 southern border is an impossibility without a massive expenditure.

House Maj. Leader Boehner (R-OH) is expected to release the “principles of immigration reform” in advance of the President’s January 28, 2014 State of the Union address.  These two issues – security on the southern border and legalization -- are the key ones to look for in the Republicans “principles of immigration reform” release.  If the GOP really wants immigration reform in 2014 these two issues will be raised in a way that allows for a compromise with Democrats.  On the other hand if the “principles of immigration reform” contains unrealistic security aims and onerous legalization pathways, then prospects of immigration reform in 2014 will suffer the same fate as S.744.

2014 NPTE EXAM DATES

With the New Year upon us, MU Law reminds readers to schedule their 2014 Physical Therapy NPTE exams.  

Keep in mind that the FSBPT uses a fixed-date testing process.  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, 2014	December 23, 2013	Jan. 2, 2014	January 15, 2014	February 5, 2014
April 30, 2014	March 26, 2014	April 2, 2014	April 16, 2014	May 7, 2014
July 22&23, 2014	June 17, 2014	June 24, 2014	July 8, 2014	July 30, 2014
October 29, 2014	Sept. 24, 2014	Oct. 1, 2014	Oct. 15, 2014	Nov. 5, 2014

FEBRUARY 2014 VISA BULLETIN

The Department of State has just released the February 2013 Visa Bulletin.  This is the fifthVisa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The All Other Countries EB-3 date jumped yet again.  It has now moved almost two years in the last few Visa Bulletins.   

The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3, which means that Chinese EB-3s are processing faster than Chinese EB-2s.  Chinese nationals who are EB-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.

Unfortunately India EB-2 and India EB-3 remained stuck.  India EB-2 and EB-3 have not moved in several months.

The Philippine EB-3 did advance another 8 weeks.  This is the second notable movement for Philippine EB-3 in the last two Visa Bulletins.

Here is this month's complete chart:

February 2014 Visa Bulletin
	All Other Countries	China	India	Mexico	Philippines
EB-2	Current	08JAN09	15NOV04	Current	Current
EB-3	01JUN12	01JUN12	01SEP03	01JUN12	15APR07

USCIS TELECONFERENCE CENTERING ON H-1B AND SCHEDULE A FOR NURSES

The USCIS has announced a free teleconference to provide feedback on H-1B nonimmigrant workers and Schedule A immigrant workers, specifically nurses.

The teleconference is designed to allow a newly assembled team of USCIS government immigration experts to explore how it can “enhance clarity and consistency in health care adjudications, focusing on the nursing industry.” 

The team of USCIS government immigration experts is modeled on the USCIS’ Entrepreneurs in Residence program.  The EIR program brought together private sector entrepreneurs together with USCIS immigration experts with the goal of producing clear policies that are consistent with business realities.

To register the session, visit USCIS’ registration page.

CAN JOHN BOEHNER LEAD ON IMMIGRATION IN 2014?

The best chance for Comprehensive Immigration Reform in many years was squandered in 2013.  An exciting spring led to a successful bipartisan Senate Bill 744 in June.  That bill was never seriously considered by the House.  Tea Party Republicans effectively held control of the Republican Party’s majority power and refused to allow CIR to come to a vote in spite of Majority Leader John Boehner (R-OH) interest in an immigration bill.

The Tea Party wing may have overplayed its hand in October’s budget battle that shut down the federal government.  After several weeks both parties’ centrists wrestled control back from the extremists and compromised on a bill to end the government shut-down.  The wrestling back of control may have signaled that the centrists are ready to lead.  If so, Comprehensive Immigration Reform may once again be targeted as the type of policy that both parties can get behind. 

Most significantly, Maj. Leader Boehner hired Becky Tallent in December 2013.  Ms. Tallent is a long-time advisor to Sen. John McCain (R-AZ) who has repeatedly made reform the United States’ immigration laws a priority.  Reportedly, Ms. Tallent’s hire was made because of Rep. Boehner’s desire for an immigration bill.