Legislative Update for MDs

Last week the House of Representatives passed a continuing resolution that if passed will extend the doctor’s Conrad 30 program, which provides a common path for doctor immigration. The Conrad 30 program provides each U.S. state with 30 waivers for J-1 physicians each fiscal year.

The legislation also includes extensions of the EB-5. E-Verify, and Religious Worker programs. These extensions, which are embedded in the annual government funding legislation is now headed to the Senate where it is expected to be considered today. The legislation is expected to pass before October 1, 2009, or else the government’s funding will dry up.

The legislation does not contain any “new” legislation, such as H.R.2536 - Emergency Nursing Supply Relief Act. Nursing and allied healthcare occupational visa reform is more likely to happen in early 2010.

New USCIS Site

On Tuesday I was asked to participate in a call with USCIS Director Alejandro Mayorkas. The Director reached out to several prominent bloggers. The purpose of the call was to get feedback on the new USCIS website. To the Director's credit, he participated directly on the call. He answered questions directly from the bloggers and had several USCIS officials there to help him with some of the details that the director of a huge agency could not possibly know.

The new site has some very nice features. The most immediate improvement is that the site is clean and user-friendly. The updates to the Case Status section are commendable. Looking ahead, the Director explained that in May 2010 the site will alllow for interactive email service queries.

The site is still buggy. Many of the new links are not operable at this time; USCIS expects to fix the bugs in the next few days/months. Curiously the webpage URL’s are still unusually long. In the future, USCIS expects simplified URLs (e.g. www.uscis.gov/forms instead of http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=db029c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD. This URL is not a joke!).

The Director showed a self-deprecating sense of humor. After acknowledging that the link to the Leadership Biography page was not yet fully operable, he coyly remarked that the reason for the delay was because his biography was lengthy and he had not yet finished it.

But the best message that I heard is that the USCIS took the time to reach out to the community. In the past, USCIS announcements often come with a simple Press Release. This “new” USCIS approach to community outreach is laudable. The Director and his team deserves kudos.

Fewer International Nurses Interested in the US

During most of the 2000s, internationally trained nurses made up about 10-15% of all new RNs that came on-line in the US. These numbers disappeared with the onset of retrogression in January 2008. In spite of the retrogression, internationally-trained and educated nurses remained faithful to the US, as evidenced by the fact that internationally-trained RNs continued to take the NCLEX in great numbers.

In 2006, about 20,907 internationally educated RNs passed the NCLEX exam. In 2007, the volume jumped; 22,827 internationally educated nurses passed the NCLEX exam. With the onset of retrogression, 2008 saw a slight decline; 18,905 internationally educated RNs passed the exam.

But the latest numbers point to a massive drop in the numbers of internationally educated nurses passing NCLEX. Through June 30, 2009, only 7,236 have passed the exam, which annualizes to 14,472.

While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. By the end of the next decade the US could be short 250,000 to 1 million nurses, depending on whose estimates you read.

It is obvious that reasonable visa opportunities for international nurses must happen or else the US is going to find that it has a massive nursing shortage and international nurses are no longer there to fill the gap.

All statistics in this posting are from the NLCEX Fact Sheets, which are published on NCSBN’s webpage.

The Most Optimistic Scenario

I was recently asked by a client to offer my opinion on the most optimistic scenario of when we might see healthcare visa reform in the US.

Sen. Schumer (D-NY) is one of the Senate’s leading members and has long made immigration reform a legislative priority. With Sen. Kennedy’s passing, the Democratic leadership informally has tapped Sen. Schumer to draft the Comprehensive Immigration Reform (CIR) bill. Earlier this summer, he listed his principles for comprehensive immigration.

Sen. Schumer has long been a proponent of sensible immigration reform, including liberalized visa numbers in occupations that have been in short supply. In 2005 he helped pass the EX visa, which offered 50,000 visas for applicants holding Schedule A occupations and their immediate family members. Schedule A occupations are those occupations that have been certified in short supply by the Department of Labor (DOL). The DOL takes its role seriously and looks long-term before it lists and delists occupations from Schedule A. Schedule A presently includes Physical Therapists and Registered Nurses.

Democratic leadership already has decided that CIR will not be on the agenda until 2010. Whether that happens largely is dependent on President Obama and the Democratic leadership’s popularity ratings at the end of 2009. Both ratings have slipped in recent months.

If the Democrats and Pres. Obama can stabilize or improve their popularity, then it seems likely that they will be able to pass CIR in early 2010. US mid-term elections will take place in November 2010, and so any CIR bill must be done by the spring. No politician will want a CIR bill to drag into the summer of 2010.

Given that Sen. Schumer’s historical position on employment based immigration, it seems more likely than not that the CIR bill will include nurse visa reform. But there still are many hurdles to clear before we get to spring 2010.

October Visa Bulletin Released

The October Visa Bulletin has been released. This is the first quarter of the 2010 US Fiscal Year. The news is not positive.

EB1: All Current
EB2: All Current, except China (22MAR05), India (22JAN05)
EB3: All 01JUN02, except China (22FEB02), India (15APR01), Mexico (01MAY02).

Based on these processing times, a typical EB3 Nurse takes over 7 years to arrive in the United States, and even longer if the nurse was born in China, India, or Mexico. The US nursing shortage certainly has abated in the last few months, but all credible economists opine that the nursing shortage will reemerge with a vengeance shortly after the economy turns and employment numbers stabilize.

MU calls on Congress to review the employment based visa immigration policy in this country and offer up an alternative to these ridiculous processing times. There is an excellent piece of legislation that, if passed, will create a special immigrant visa category for nurses. The legislation is H.R.2536 - Emergency Nursing Supply Relief Act and is sponsored by Rep. Wexler (D-FL) and Rep. Sensenbrenner (R- WI). The ENSRA is a good place to start.

FCCPT Type II Suspended

On September 1, the FCCPT suspended the FCCPT Type II Visa Screen process. FCCPT has determined that the original purpose of the Type II had been accomplished. The idea behind the Type II was to streamline the process for applicants already in the US. The streamlined process under Type II did not include an educational credential review.

Applicants with Type II Applications that are pending before FCCPT may complete the Type II service or they may change to the Type I service, prior to December 31, 2009. More information on the suspension of the Type II program is available at the FCCPT website.

Must I Pay Unlicensed H-1B Workers?

A client of mine recently asked me an interesting question. This client recruits Physical Therapists, although the lesson applies to all licensed occupations. They are getting ready for their H-1B hires to enter the US in October. But they have a question about when they need to pay these workers, many of whom have not yet received their licenses.

First a little background. The National Physical Therapy Exam (NPTE) is not offered overseas. Accordingly, all PTs must enter the US in order to sit for the licensing exam. The USCIS often approves unlicensed PTs for H-1B visa status, and there is ample Guidance to support these decisions.

My client’s approved PTs must then come into the US, sit for the NPTE, and then obtain their state license. Once they obtain the state license, they can begin their PT work.

The problem is that this plan bumps up against the Department of Labor’s rules on salaries to H-1B workers. 20 CFR 731(c)(6) and (7) say that H-1B workers must be paid their salaries within 30 days of entering the US. This may be problematic because it is rare that the worker enters the US, sits for the exam, and is granted the license in just 30 days.

Subsections (c)(6) and (7) also says that worker must be paid once s/he “enters into employment,” which includes “reporting for orientation” and “studying for licensing examinations”.

There are a few solutions to this dilemma, although none of them are ideal from the employer or employee’s perspective (my experience is that the H-1B workers would be willing to sacrifice all or some of their pay while waiting for the results of their licensing exam):

One solution that is in compliance with (6) and (7) is to make sure that the PT is fully ready to take the licensing exam when the PT enters the US so that you can use the full 30 day period before entering the employee into employment. If at all possible, training, and orientation should be done outside the US.

Another solution is to bring the H-1B worker into the US to take the licensing exam, and then immediately cycled back out of the US while waiting for the remainder of the licensing process. H-1B workers who aren’t in the US aren’t subject to (6) and (7).

A last strategy is initially to file the workers for part-time or hourly H-1B status. This doesn’t obviate the need to pay the wages, but can reduce the salary obligation.

AAIHR Annual Meeting

The AAIHR is holding its Annual Meeting of Members September 16, 2009 in Washington DC. The agenda includes the election of the next term’s Directors. On September 17, 2009 the AAIHR members will be walking the halls of Congress and will be promoting the ENSRA for inclusion in the CIR. Staffing companies and recruiters are invited to join via the AAIHR’s webpage.

H-1B For Nurses

I often am asked by employers and nurses, whether they can be sponsored for an H-1B visa.

There are two key concepts:

1. The nurse must hold at least a Bachelors degree in nursing (e.g. BSN); AND
2. The position must normally require a Bachelors degree.

MU has seen the most success in these scenarios:

A. The hospital is offering the nurse a position as a Clinical nurse specialist (CNS), Certified registered nurse anesthetist (CRNA), Certified nurse-midwife (CNM), or a Certified nurse practitioner (APRN-certified) Critical care and the nurse holds the certification;

B. If the nurse will be working in an Administrative position ordinarily associated with a Bachelors degree, such as Charge Nurse or Nurse Manager;

C. If the nurse will be working in one of these specialties: peri-operative, school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. And the hospital will attest that these roles are only offered to those with Bachelors degrees. Some magnet hospitals have the BSN as its standards, and these make great destination hospitals for H-1 RNs.

Reform Minded?

Late last week Homeland Security Secretary Janet Napolitano hosted 130 immigration reform leaders at the White House. The purpose of the meeting was to tamp down the growing chorus that the administration was ignoring immigration reform. The President even dropped in. The plan may have worked. Many would-be critics of any CIR legislative delay went and released positive messages shortly after the meeting.

For those interested in healthcare immigration reform, the next few months are critical. If you are interested in liberalizing needed visas for US healthcare workers, now is a good time to meet with your local Congressional delegation, as they are all in their home districts until early September.

Meeting with Congressional representatives is surprisingly easy. All that one needs to do is to place a simple call to the Representative’s office. These phone numbers are readily available on Representatives’ webpage. Everyone who is interested in the US should take the time to contact their Congressional representatives and/or have their friends and family in the US do so.

The message is a simple one:

1. The Department of Labor predicts that the Registered Nurse occupation will grow faster than any other job in the next seven years. (Chart at Table 8 of link).

2. There are not enough US nurse educators to train the next generation of nurses.
3. There is an excellent piece of legislation that, if passed, will create a special immigrant visa category for nurses. The legislation is H.R.2536 - Emergency Nursing Supply Relief Act and is sponsored by Rep. Wexler (D-FL) and Rep. Sensenbrenner (R- WI).

4. The legislation calls for 20,000 nurses per year, for three years. An additional $1,500 is added to visa fee. The $90 million that this legislation raises goes directly to US nursing schools who can use the funds to train the next generation of US nurses.

H-1B Cap History

The recent economic downturn greatly has impacted H-1 filings. As I have explained in the past, these lower numbers provide compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers salaries. That argument just doesn’t jibe with what is actually happening.

In the first five days of this H-1B season in April, the USCIS says that it received 42,000 H-1B petitions. The total is now about 45,000. This tiny increase in number is attributed to two factors: (i) the tougher measures being employed by both USCIS and the DOS; and (ii) the current economic condition in the US.

H-1B History:

(Note- Fiscal Year runs from October 1 of the prior year until September 30 of the next year. You may file for an H-1B 6 months in advance of the October 1 start of the fiscal year. In other words, the FY2010 H-1B “season” began on April 1, 2009).

FY 2009: Immediate (First week of April 2008)
FY 2008: Immediate (First week of April 2007)
FY 2007: April 1, 2006 - May 26, 2006
FY 2006: April 1, 2005 - August 12, 2005
FY 2005: April 1, 2004 - October 1, 2004
FY 2004: April 1, 2003 - Feb 17, 2004
FY 2003: Not reached (Cap was 195,000)
FY 2002: Not reached (Cap was 195,000)
FY 2001: Not reached (cap was 195,000)

Politics in the Spotlight

President Obama has just announced that the CIR bill, which is long-desired by immigration reformists, will be pushed off until 2010. The President remains committed to the cause but he is concerned that his efforts on health care, global warming, and the financial crisis will be hampered by another major issue like immigration. This strikes a blow against the healthcare immigration community, who was hoping that a CIR bill could be the force behind liberalized healthcare visa reform.

The other political issue in the spotlight is the resignation of Sen. Sen. Martinez (R-FL) and Sen. Bailey-Hutchinson (R-TX). On one hand these two Senators have been general supporters of immigration reform and so their resignations are unwelcome. Sen. Bailey-Hutchison particularly has been a leader on healthcare visa reform.

On the other hand, since both are Republicans, their influence in Senatorial matters is negligible at this point. Also, since they both are from states with increasing immigration populations, it is expected that any replacements will be unlikely to hinder any CIR legislation. To do so would alienate their constituency.

My thoughts on the chances of retrogression relief

As readers of my blog surely are aware, retrogression has made it difficult for nurses to enter the US on the immigrant visa because of the long processing times. There is an excellent piece of legislation that, if passed, will create a special immigrant visa category for nurses. The legislation is H.R.2536 - Emergency Nursing Supply Relief Act and is sponsored by Rep. Wexler (D-FL). The bill should allow for nurses to enter the US in about one year's time once the program is up and running.

The key question is whether the ENSRA will ever be acted upon. Presently, the legislation, like all immigration related legislation that isn't deemed critical, has an effective hold on it. Congress would like to address all special immigration at once in a massive Comprehensive Immigration Reform bill (CIR). And they would like to do it this fall. Sen. Schumer is taking the lead. The hope is that Sen. Schumer (D-NY) can craft a piece of legislation that will not suffer the same fate as CIR did when it was last offered.

The good news for those in favor of increased nurse visa numbers is that Sen. Schumer has long been a champion of increased nurse visa numbers. In 2005 he led the charge for a special Nurse Exempt visa that was signed into law in May 2005. That bill provided 50,000 visas for nurses and their families. Sen. Schumer is expected to introduce the bill this fall. Because of Sen. Schumer's past work on liberalized nurse visa numbers, I am optimistic that he will either encompass Rep. Wexler's ENSRA or use the principles behind the ENSRA in his CIR.

End of the Summer Session

The US House has adjourned and will reconvene on Tuesday, September 8. The Senate will adjourn at the end of this week, and return on Monday, September 7. No immigration-related activities are planned for this week, as Sen. Schumer has cancelled the employment-based immigration hearing. The hearing would have spoken to supply shortages. Sen. Schumer has long been a nurse visa bill champion.

When the two houses of Congress return there will be a big push to finalize the Healthcare bill, which isn’t about immigration, but likely will lead to increased demand for healthcare services in the US. How Congress deals with liberalized healthcare visa rules is an open question at this point. The next few months will shape America’s nurse visa policy for years to come.

Pres. Arroyo Meets Pres. Obama

Yesterday Philippines President Gloria Macapagal-Arroyo’s met with US President Barack Obama in Washington DC. Ms. Arroyo was the first Southeast Asian President to be greeted at the White House. Ms. Arroyo sought to discuss economic, diplomatic and national security issues.

Philippine Senate Minority Leader Aquilino Q. Pimentel Jr urged Ms. Arroyo to press Mr. Obama on nurse immigration issues. GMANews reports that Sen. Pimentel said that if Ms. Arroyo can get "a quota of 20,000 nurses a year, that would be a great economic bonanza for our nurses and their families."

Ms Arroyo’s other engagements on Friday called for meetings with Rep. Sheila Jackson Lee, who has repeatedly called for increased nursing and healthcare visa quotas.


Note on the Death of Fmr. Pres. Aquino. As Philippine readers of this Blog surely know, Former President Corazon Aquino died Friday (Saturday in the Philippines). The Musillo Unkenholt firm recognizes the great leadership that Ms. Aquino played in the “people power” movement in the 1980s and would like Philippine readers to know that we will keep the Aquino family and the Philippine people in our thoughts and prayers.

H-1 Update and a note

The USCIS’ latest H-1B count update shows that as of July 10, 2009, approximately 44,900 H-1B cap-subject petitions had been filed. In mid-May the USCIS reported that approximately 45,000 H-1B cap-subject petitions had been filed. A recent article in the IT trade journal Computerworld explains that the retreat in H-1B numbers is due to the fact that USCIS is actually denying more cases than they are receiving. Anecdotal reports are that immigration attorneys are seeing many more denials than in years past.

For the healthcare occupations this may be a good sign. Physical and Occupational Therapy positions are being approved without much incident, now that the Masters Degree issue has been resolved. The USCIS seems to be willing to accept the argument that certain nursing positions are eligible for H-1B visas as well, provided that the proffered positions are normally ones for which bachelor degrees are required.

Note- Our MU email server is having some problems. We should have it resolved in the next few days. If you have emailed me and I haven’t responded, odds are that I did not receive it. Once the email is fixed, you should re-send the email.

Guidance on PT/OT Masters denied cases

The USCIS has just released a Guidance Memorandum for those Physical Therapists and Occupational Therapists who had their H-1B petitions denied this spring before the issuance of the Velarde Guidance Memorandum. Those cases that were denied solely because ether H-1B worker did not have a Masters degrees should send an email to the Service Center that issued the denial. Special email addresses have been created to handle these cases:

California Service Center: csc-ncsc-followup@dhs.gov

Vermont Service Center: vsc.ncscfollowup@dhs.gov

The email should explain how the particular case meets the standards set forth in the Velarde Guidance Memorandum.

See also my July 7 post on this issue.

August VB released

The Department of State has released the August Visa Bulletin. The Visa Bulletin is the listing of processing dates for immigrant visas (Green cards). As expected there are no changes in the August Bulletin, as all visas has been exhausted for the usual categories (EB3) for RNs, PTs, OTs and other allied positions.

The EB2 category remains “current” for natives of most countries. Cases filed under EB2 are eligible for immediate processing and should expect approval in the near future. The two major EB2 exceptions are China and India. Chinese and Indian cases are only being processed for those with priority dates before October 1, 2003.

The September Visa Bulletin will be released in mid-August. The September VB will likely have the same dates as the August Visa Bulletin, at least with respect to the categories discussed in this post.

The next major Visa Bulletin will be the October VB, which should be published in mid-September. The US fiscal year runs from October 1 – September 30, and so the 2010 US fiscal year begins October 1, 2009. Preliminary expectations are that the DOS will start the dates off slowly, and then progress them in a systematic process throughout the year. My sense is that the EB3 dates will be in the 2003-05 time frame. Depending on demand in October and November, I could see those dates aggressively moving ahead.

Predicting the progression of Visa Bulletin dates is a somewhat impossible exercise. No one knows just how many 2003-05 visas remain unused, and no one knows how many of those people no longer want their visas.

Masters PT / OT H-1B Update

Back in the spring, the USCIS routinely was denying PT and OT H-1B cases in instances in which the PT /OT did not hold a Masters Degree. This was wrong. Many clients filed appeals to the Administrative Appeals Office (AAO). Eventually, several staffing and recruiting clients bandied together and filed a lawsuit against the USCIS. Cindy and I were pleased to take a leading role in the direction of that lawsuit.

In direct response to the lawsuit, USCIS’ Service Center Operations Officer Barbara Velarde issued a May 22, 2009 Guidance Memorandum clarifying the point that there was no Masters Degree rule. Instead, the Guidance directs all USCIS officers to approve all H-1B cases for PT/OTs as long as the worker holds a license in the state of intended employment.

Since that time all of MU’s post-May 22 cases have been approved, save one unusual case. We are working directly with the California Service to have that one case overturned.

At the AILA Annual Convention, the USCIS said that there would be a forthcoming Guidance explaining how to overturn previously denied H-1B cases. None has been published. That having been said, we have begun to see the USCIS, on its own volition, take some action. This week we received our first AAO approval; the case appears to have never actually been sent to the AAO, it was just approved by the California Service Center (CSC).

I’ve also seen a communication in which the CSC confirmed to a House of Representatives’ staffer, that “the California Service Center will commit to an answer in 30 to 60 days.” Hopefully, we all can put an end to this unfortunate tale in the near future.

Following the Blog

There are several ways to follow the posts on this Blog.

1. Read me on ILW.com. As I have done for the past three and a half years, I expect to post 2-3 times a week with updates targeted to Healthcare Immigration, focusing on RNs, PTs, OTs, SLPs, and other allied occupations.

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