Obama Says No

The President has sounded the death knell for immigration reform in 2010. Those expecting immigration reform this year – including nurses and other healthcare workers – should not expect any action until after the mid-term elections in November 2010.

The President’s remarks ended some speculation this week that the Senate would attempt to move on immigration. Earlier, a group of Senators released a new summary Comprehensive Immigration Reform bill -- the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) bill. REPAIR was co-authored by many leading Democrats: Senators Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Dianne Feinstein (D-CA), and Robert Menendez (D-NJ). It provides a path forward for both political parties to come together and enact a lasting federal fix to the problem this year.

The actual bill language has yet to be released, although summaries have been published. At this point, it is unknown whether there is a specific liberalizing provision for Schedule A occupations – Registered Nurse and Physical Therapists. Past versions of CIR have included such a provision.

To some degree, it doesn’t matter. The President indicated that immigration is a secondary domestic priority and it is unlikely that immigration reform will be taken up in 2010.

Healthcare Immigration Primer: Physical Therapists

TEMPORARY OPTIONS: Physical Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

A Physical Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.

GREEN CARD OPTIONS: Because Physical Therapists have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Physical Therapist will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.

Because the first professional degree required for licensure as a Physical Therapist in the United States is evolving, some Physical Therapy positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience.

The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available.

Generally speaking there is no backlog for EB-2 visas for most countries (excluding India, Mexico, and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

CURRENT ISSUES: Filing EB-2 applications is a fairly new phenomenon. MU has had several EB-2 applications approved for applications requiring 5 years of experience.

Read the full Healthcare Immigration Primer by clicking here.

Healthcare Immigration Primer: Registered Nurses

TEMPORARY OPTIONS: Registered Nurses are generally not eligible for H-1B status because the position generally does not require at least a Bachelor’s degree or the equivalent. However, it is possible to obtain H-1B status for a Registered Nurse if the position requires a Bachelor’s degree or the equivalent. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

A Registered Nurse who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.

GREEN CARD OPTIONS: Because Registered Nurses have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Registered Nurse will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.

CURRENT ISSUES: Because some Employers do in fact require a Bachelors degree or the equivalent for some Registered Nurse positions, some Registered Nurses are eligible for H-1B status. The USCIS has acknowledged that certain Advanced Practice nurses as well as some specialty nurse positions (such as Critical Care and Peri-Operative) may be eligible for H-1B status.

To qualify as a specialty occupation [according to 8 CFR §214.2(h)(4)(iii)(A)], the position must meet at least one of the following criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
• The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree
• The employer normally requires a degree or its equivalent for the position
• The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.

The USCIS takes the position that each year of education is equivalent to three years of experience. Thus, for example, an employer that normally requires a Bachelor’s degree in Nursing or an Associate’s degree and at least six years of experience is able to attest that the position normally requires a Bachelor’s degree or the equivalent.

Read the full Healthcare Immigration Primer by clicking here.

MU Healthcare Immigration Primer: The Series

Over the next few posts MU will be posting basic US immigration information for common occupations such as Registered Nurses, Physical Therapists, and Occupational Therapists. If there are any occupations that you would like us to focus on, please let us know either via email or via the comments.

This posting will focus on some preliminary thoughts and issues that are common in most visa Petitions and Applications. The subsequent postings will highlight the specific occupations.

In all instances, there must be an employer who is the Petitioner of the visa. Generally the Beneficiary must hold the appropriate state license, although a few exceptions will be noted.

For those who are overseas, any healthcare immigration case generally starts with an immigration Petition filing in the United States. Upon approval of the Petition, the case is forwarded to the appropriate US Consulate or Embassy where the visa is issued to the beneficiary.

Upon visa issuance, the Beneficiary can enter the US. Family members generally can attend the interview and are issued derivative visas. Some derivative visas allow the derivatives work authorization and others do not.

There are two broad visa categories: nonimmigrant and immigrant visas. Nonimmigrant visas (also called NIVs or temporary visas) typically are for shorter periods of time. NIVs also tie an employer and employee. In other words if the Beneficiary wants to move to a new employer, a new NIV must be filed.

Once issued, Immigrant visas (also called IVs, green cards, or permanent residency) typically remain valid for 10 years. Immigrant visa holders also become eligible for US Citizenship, ordinarily after 5 years. IVs also may sponsor certain family members for US immigration, although the retrogression for some family categories is lengthy.

What the USCIS learned

Does the USCIS fully understand the law and the legal implications of the Neufeld Memorandum? An April 15, 2010 Executive Summary of a recent teleconference implies that the Service may be getting the message, although the Executive Summary may confuse as much as it informs.

The Neufeld Memo’s main flaw is that it misreads the underlying regulation. 8 CFR 214.2(h)(4)(ii) holds that a U.S. employer is indicated by five characteristics: hire, pay, fire, supervise, or otherwise control. This regulation is controlling. Incorrectly, the Neufeld Memo implies that “right of control” is a superior characteristic encompassing the other characteristics.

In order to attempt to get its hands around the growing confusion, the USCIS held a Listening Session on March 26, 2010. MU’s attended and participated at the Session.

The USCIS’ recently released Executive Summary from that session recognizes that “if” right of control is required, then the Neufeld Memo contradicts the existing regulation. The Executive Summary goes further and agrees that “if” right of control is only one of the five elements, then an amendment is needed to the Memo.

These are not small issues. Staffing companies use the H-1B visa to supply staff to third-party worksites, mainly where well-documented US supply is short. At this point, it simply makes sense for the USCIS to suspend or withdraw the Neufeld Memorandum. At best, the Memo makes a confusing area of law incomprehensible. At worst, it takes a simple regulation and misapplies it.

MU Comments on the Proposed I-129

To little fanfare the USCIS recently announced a new proposed Form I-129. The Form I-129 is used in many business nonimmigrant filings, including the H-1B. The USCIS asked for public comments on the proposed revisions. Musillo Unkenholt recently filed our comments with the USCIS.

While Musillo Unkenholt has several problems with the proposed revised Form I-129, MU elected to highlight the most significant change in our comments to the USCIS. Namely, the apparent new requirement that an amended H-1B Petition must be filed whenever a H-1B worker changes his geographical location. This new requirement quietly was snuck into the new Form’s instructions.

This has never been USCIS policy. The USCIS’ current policy remains unchanged since the early 1990s. In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

We invite you to read the MU letter. AILA has also published a lengthy letter that was also submitted to the USCIS as part of the comment period. AILA's letter raises a number of excellent points.

USCIS recently has begun to engage the public in advance of changes. MU applauds this effort and has actively participated in several of the USCIS’ outreach sessions. This effort to slip a massive change past the immigration bar belies that effort.

May Visa Bulletin

The Department of State has just released the May 2010 Visa Bulletin.

The relevant dates are:
EB1 – all current
EB2 – all current, except China (22 AUG 05) and India (1 FEB 05)
EB3 – all 22 APR 03, except India (01 OCT 01) and Mexico (U)

This is modest progress from the last few Visa Bulletins for All Other EB3 Applications. All Other EB3 has increased 8 months since February 2010 Visa Bulletin, when it was 22 SEP 2002. India EB3 has also improved about 4 months since February’s Visa Bulletin (22 JUN 01). Mexican EB3 has become unavailable.

H-1B numbers down dramatically

Filing for the H-1B visa cap opened on April 1, 2010, and this year the filing numbers are down dramatically. Filing numbers are about one-third of last year’s numbers and a staggering 10% from the H-1B filing numbers in the middle of the past decade.

Each year, the USCIS is allowed to approve 65,000 H-1B “regular” Petitions. USCIS is also allowed to approve 20,000 H-1B “Masters” Petitions; these are cases for foreign-workers who have graduated from a US-based University with at least a Masters degree. Any cases received at one of the two H-1B Service Centers before April 7 are treated as “Day One” filings.

Reports have indicated that the Vermont Service Center has received about 7,500 cap-subject “regular” H-1 Petitions and about 3,000 Masters Petitions. Yesterday’s report, which is from an AILA member at a Vermont Service Center meeting, indicates that there were similar numbers received at the California Service Center.

All told, this means that fewer than 15,000 regular H-1B Petitions have been received and 6,000 US Masters degree H-1Bs. Last year the USCIS received a little more than 40,000 regular H-1 filings during the first week. In the middle of the decade it was common for the USCIS to receive over 100,000 H-1B petitions.

The H-1B is a common visa for healthcare professionals such as Physical Therapists, Occupational Therapists, Speech Language Pathologists, some nursing positions, and other professions ordinarily associated with a Bachelors degree or greater. The H-1B traditionally has been in great demand by the IT community.

Schumer and Graham on CIR

This past Sunday, Sens. Schumer and Graham were featured on NBC’s Meet The Press (you can watch the four minute clip where the Senators talk immigration at NBC's website). Sen. Graham said that he would continue to work with Sen. Schumer to pass CIR. These two Senators have been leading the push for CIR. The conventional wisdom is that the House will not push forward on CIR unless the Senate acts firstly, which is why it is so important that these two are willing to move ahead.

Last week, Sen. Graham said that immigration would be the first casualty of partisanship if the Democrats pushed through the healthcare bill, which is exactly what the Democrats did. On Meet The Press, he backed off that position.

“I will keep working with Chuck on immigration [but] immigration’s tough,” said Sen. Graham. The Senator cautioned that unless President Obama leads the charge, “tough sledding lies ahead.”

Is immigration reform dead? “I don’t think so,” said Sen. Schumer. Sen. Schumer continued, “We’re real close.” The Senator then listed groups like labor, business, and religious entities that are ready to sign on.

Many are willing to come to the simple conclusion that CIR has no chance of passing in 2010. That is certainly the likely outcome. As I have said before, the pessimism may be misplaced. It helps nobody to be needlessly optimistic or pessimistic on CIR. The reality is that with hard work CIR can be passed and with targeted advocacy healthcare occupations can be part of the discussion. Have you called your Congressman?

Notes from the USCIS Session on Neufeld Memo

On Friday March 26, MU’s Cindy Unkenholt attended the USCIS’ listening session on the application of the Neufeld Memo for the Healthcare industry. MU’s Chris Musillo participated telephonically.

The USCIS was represented by several high-ranking officers including General Counsel Roxie Bacon and Barbara Velarde, Chief Service Center Operations. Oddly, Donald Neufeld, the author of the Memo, did not participate in the session.

Ms. Bacon pointed out that the approval rate for Therapists was unchanged since the publication of the Memo on January 8, 2010. This implies that the fears that the Memo would increase denial rates are overblown.

Other key points were raised by the attendees included,

- That the definition of employer-employee is established in the Memorandum. In conversations that I have had with multiple AILA attorneys all are confident in this position. USCIS did not comment on the legality of this definition. AILA spells out most of this argument in their recent letter.

- Co-employer. The USCIS seems to be taking the position that it must choose the "best employer" (either Staffing Co. or Facility). This is not how the law is to be applied in this area. Instead, the USCIS is only to analyze and see if the Petitioner has the right to control. Multiple parties (both Staffing Co. and Facility) can have a right to control. This is the legal foundation behind the co-employer doctrine, which has a long basis in law. Indeed, the DOL's own regulations contemplate co-employer doctrine in the FMLA regulations. See, e.g. 29 CFR 825.16.

- Burden of Proof. The Service has a policy on burden of proof. The policy is this: If the petitioner submits relevant, probative, and credible evidence that is more likely than not to be true, the USCIS must approve the case. All too often USCIS officers are not applying this standard or just paying lip-service to it.

- Expansion of the Neufeld Memo. There is also concern that this Memo is going to serve as the basis to be expanded to I-140's, etc. USCIS didn't even side-skirt the issue. Ms. Bacon implied that the USCIS will look to expand the logic behind the Memo in future Memos.

USCIS Session - Implications of H-1B Memo on Healthcare Industry

Tomorrow the USCIS will hold a public session on the impact of the Neufeld Memo on the Healthcare Industry. MU’s Cindy Unkenholt will be attending in person. If you would like to attend either in person or via telephone, please contact USCIS’ Suzie Clark, Suzanne.clarke@dhs.gov or (202) 272-1279. MU will publish a Blog post of any important information that comes out of the session, although none is expected since the session is limited to hearing industry concerns.

MU will or has raised several concerns with the application of the Neufeld Memo in the past. These include:

1. The issuance of the Neufeld Memorandum is a substantive change to existing law. Such changes to law by Memorandum are illegal under the Administrative Procedures Act. Under the APA, regulatory agencies like USCIS must first publish proposed rules in the Federal Register. Then, the agency must allow the public to comment on the changes. The USCIS must then consider and respond to the public comment.

2. The entire reasoning of the Neufeld Memorandum is unsound. In the Neufeld Memorandum, the USCIS found that existing law did not define “employer-employee” relationship. AILA contends, correctly MU thinks, that existing law does define “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Therefore the USCIS’ use of Supreme Court cases and common-law is improper since the definition is already right there in the definition.

3. To the extent that the USCIS applies the definition, it limits its focus to one of these five characteristics -- control – and fails to explore the other four characteristics – hire, pay, fire, and supervise.

4. Even if the USCIS feels that it needs help in defining “employer-employee,” the USCIS completely misapplies the relevant Supreme Court decisions. Cases such as Clackamas speak to the idea of balancing all characteristics and not limiting the analysis to the control characteristic.

5. When Congress last amended the relevant statutes in the law IMMACT90. It expressly sought to expand the definition of employer, not restrict it. USCIS is not legally allowed to violate Congress’ express intent.

Why the Pessimism on CIR May Be Misplaced

This week President Obama is expected to sign the long-delayed Healthcare bill, thus ending one the longer American legislative dramas in recent history. Pundits have long-suspected that immigration reform would be the next domestic issue on President Obama’s list, although most expected that the President could get Healthcare and Comprehensive Immigration Reform tackled in his first year. This weekend tens of thousands turned up in Washington to kickoff the rally for CIR.

For readers of this Blog, CIR is only critical insofar as CIR includes liberalized visa quotas and procedures for healthcare occupations that have long been in short American supply – nurses, physical therapists, occupational therapists, etc. and are expected to be in short supply in the upcoming decade.

Legislators have been hesitant to pass piecemeal legislation at targeted immigration issues. The idea has been to force all immigration issues into one comprehensive bill. This strategy was unsuccessful in 2006-7.

Because of the failure of the 2006-7 effort, pundits are skeptical that any CIR bill will be finished before this November’s mid-term election. The problem with that pessimism is that it fails to consider that all legislation is a long haul. For instance, the Healthcare bill has been declared dead more times than a horror movie villain, and yet it lives!

It helps nobody to be needlessly optimistic or pessimistic on CIR. The reality is that with hard work CIR can be passed and with targeted advocacy healthcare occupations can be part of the discussion. Have you called your Congressman?

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English testing waived for certain Visa Screen renewals

CGFNS recently announced that renewal applicants do not have to take another approved English exam for renewal of their Visa Screen certificate if they have been employed in the US for at least 27–36 months — including nine months of the year before the date an applicant submits the renewal application. Applicants will need to have their employer submit an employment summary on corporate letterhead with the appropriate signature for the English requirement to be waived.

April 2010 Visa Bulletin

The Department of State has just released the April 2010 Visa Bulletin. The relevant dates are:

EB1 – all current
EB2 – all current, except China (22 AUG 05) and India (1 FEB 05)
EB3 – all 01 FEB 03, except India (08 SEP 01) and Mexico (01 JUL 02)

This is modest progress from last month’s Visa Bulletin for All Other EB3 Applications. All Other EB3 has increased 3 months since March 2010 and 6 months since February 2010, when it was 22 SEP 2002. India EB3 has also improved from 22 JUN 2001 since February’s Visa Bulletin.

Oddly Timed H-1C Regulations

The Department of Labor has just released final H-1C regulations. The timing of the release is odd in light of the fact that the H-1C program expired on December 20, 2009.

The purpose of the late publication of the regulations is “to ensure worker protections are in place for those nurses currently employed in H-1C status, whose stays may extend beyond December 20, 2009.” Some H-1C nurses are still authorized to work in the US, although that number is shrinking with each day; extensions are no longer approvable with the H-1C program’s expiration.

The Background Information to the regulation includes a lengthy history of the H-1C program. Originally, the H-1C program was conceived as nonimmigrant solution to the nursing shortage. The usual nonimmigrant professional program, the H-1B, has only limited application for registered nurses. But the limits on the H-1C program rendered it inert for all but fourteen hospitals in the US.

There does not seem to be a groundswell of support for a reenactment of the H-1C program, since the nursing shortages have lessened with the onset of the recession. Nevertheless, the H-1C program has been extended several times in the past. It remains to be seen whether the H-1C will rematerialize when the inevitable nursing staffing shortages reemerge.

Requirements for H-1B Petitions Involving Third Party Worksites

One of the requirements of the regulations pertaining to the filing of H-1B petitions is that the Employer “has an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” 8 C.F.R. 214.2(h)(4)(ii).

Historically, documentation of the ability to hire, pay and fire an Employee was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” which reflects the current position of the USCIS on this issue. In this Memorandum, the USCIS takes the position that Petitioner (Employer) control over the Beneficiary (Employee) is paramount. The Memorandum outlines a number of factors to be considered including:

· the method and manner of supervision
· whether the Petitioner provides any necessary tools or instrumentalities for the Beneficiary to perform the duties of employment
· whether the Petitioner has the ability to hire, pay and fire the Beneficiary
· whether the Petitioner evaluates the work-product of the Beneficiary
· whether the Petitioner provides employee benefits
· whether the Beneficiary utilizes any proprietary information of the Petitioner
· whether the Beneficiary produces an end-product directly linked to the Petitioner’s business
· whether the Petitioner has the ability to control the manner, means, and the work product of the Beneficiary

MU takes the position that the January 8, 2010 Memorandum issued by Donald Neufeld, Associate Director of the USCIS, and the resulting policies of the USCIS in adjudicating H-1B petitions are ultra vires. We have joined the multitude of voices calling for a complete retraction of the Memorandum. However, until such time as the Memorandum is withdrawn, we recommend that our clients be prepared to present documentation of an itinerary and the Employer-Employee relationship.

This post is an excerpt of a larger MU Visa Advisor article authored by Cindy Unkenholt that has been sent to clients of MU. The article includes specific recommendations on improving companies’ profiles so that the USCIS finds the Petitioner is a Consultancy and not a “job shop”. If you would like a copy of the article please email Cindy Unkenholt or Chris Musillo.

AHCA to Congress: Extend Cap Exemptions

With all the bluster on Capitol Hill about Healthcare Reform, the plan to include an extension to the Medicare part B therapy cap exceptions process fell apart last week with little fanfare. The exception rule expired on December 31, 2009.

Currently there is a annual cap totaling $1,860 per patient for Therapy services. In years past, the exception to the therapy cap for patients in dire need of therapy care was routinely extended. The exception was supposed to be included in last week’s Jobs bill, but it was shelved due to political machinations.

This is having a major negative impact on many healthcare providers and the patients that they treat. The therapy industry was devastated the last time the exception lapsed for a significant period of time in the late 1990s.

If you would like to take positive action to extend the Medicare part B therapy cap exceptions, please see the AHCA CapWiz page.

CES On-Line Only Starting March 1

Earlier this month, CGFNS launched their on-line CES reporting system. Starting on March 1, 2010, CES paper reports will no longer be mailed. Each individual report will be available for one year, after which it will no longer be available

On-line reporting will not be available to applicants who were issued a report before February 2, 2010. Applicants who are issued a report between February 2 and March 1 will receive a paper copy of the report in the mail and also be able to view and download their report online.

USCIS Neufeld Teleconference

The USCIS held a February 18 teleconference aimed at addressing the myriad of questions and rumors that have surfaced since the publication of the Neufeld Memorandum a few weeks ago. The Neufeld Memo purports to clarify USCIS policy on the legality of H-1B workers who are placed at third-party worksites. Several times on the call USCIS officials reiterated that the Memo is not new law, but merely an explanation of their current interpretation of law.

The attendees would have none of it. Dozens of immigration attorneys, including MU’s Chris Musillo spoke on the teleconference. A litany of criticisms was hurled at USCIS. Members of AILA and other industry trade groups also spoke up on the teleconference and condemned the Memo. The criticisms ranged from the surreptitious nature of the development of the Memorandum, to the absence of legal due process, to the unintended consequences in related areas of law, such as DOS immigration officials at airports misapplying this DHS Memorandum.

The loudest disapproval was directed at the underlying law supporting the Memorandum. MU contends – and many other immigration attorneys – that the Memorandum is simply not adequately grounded in law. For that reason many called on the USCIS to withdraw the Memorandum.

In the Memorandum, the USCIS found that existing law does not define “employer-employee” relationship. But this is wrong. Existing law does define an “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. The Neufeld Memorandum pays lip-service to these five factors and attempts to distinguish the “right to control” characteristic as a superior characteristic.

MU recently has had several H-1B's approved in spite of the Memorandum. That having been said, MU recently has seen a new “stock” RFE on a few of our client’s cases. At this point, it is unclear how USCIS officials will analyze H-1B third-party worksites in light of this new “stock” RFE and the Memorandum.

On the teleconference, USCIS announced that there would be a second teleconference. The date of the teleconference is not set at this time, but it is expected that the call will take place in early March.