Happy Holidays!

MU wishes all of its clients and friends a joyous Holiday season and a healthy New Year.

Dreaming

The only potential immigration bill that will come out of the American Congress this Lame Duck Session is the Dream Act. The Dream Act proposes to provide a “path” to legalization for illegal/undocumented immigrants who: (1) entered the US as minors (under 16), (2) have completed high school and either served in the US military for two years or completed at least two years of college, and (3) are of good moral character (e.g. no criminal convictions). The bill will only apply to those that have been in the US for five years or more on the day of enactment, so there is no risk of encouraging future illegal entrants. The bill has gone through a few different iterations, but these are the basic concepts.

The “path” is not an easy one. The House’s version of the Dream Act, which was passed earlier this month, says that applicants must spend a minimum of 11 years after becoming legalized, before they would eligible to even apply for US citizenship. In other words, if the Dream Act was passed tomorrow, the first applicants would not become US citizens until 2021. During that time period, applicants would have another batch of requirements, notably a continued “good moral character” requirement.

The Senate bill is shortly supposed to come up for vote. The Senate vote will be a close one. Outgoing Senate Majority Leader Harry Reid is said to be spending loads of time working his colleagues for votes.

While the bill doesn’t contain any provisions for healthcare workers, MU supports the bill and thinks you should too. For one, the bill appears to strike a proper balance the real-world concern of rewarding illegal entrants with the moral issues of penalizing children who have spent most of their lives in the US.

For two, it has been ages since Congress has passed a sensible immigration bill. By passing a moderate and moral bill, the US public may again see immigrants as people like them who help build a wonderful and enriched society. In turn, the healthcare community may get the immigration legislation it needs.

January 2011 Visa Bulletin

The Department of State has just released the January 2011 Visa Bulletin, which is the fourth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had small progress in several classifications.

January 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	22JUN06	08MAY06	Current
EB-3	22MAR05	15DEC03	01FEB02	15APR03

POEA: Job scammers target medical workers

The Philippine Overseas Employment Agency December 7, 2010 News Advisory cautions that “Medical students, graduates, and practitioners seem to be the favorite targets of employment scammers.” The POEA is the Philippine government’s regulatory agency for exiting Philippine nationals.

The News Advisory cites fraudulent employers posing to be healthcare facilities in Israel, Guam, and Switzerland, and says that the American Federal Bureau of Investigation is examining an alleged fake hospital in Guam.

H-1B Cap Update: Fewer than 15,000 H-1B visas remaining

As of November 26, 2010, approximately 50,400 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 18,400 H-1B petitions for aliens with advanced degrees. There are 65,000 “regular” cap-subject visas and 20,000 “advanced degree” H-1Bs”.

Historically, as the H-1B usage number has gotten closer to 65,000, the number of filings increases. Accordingly, MU urges all MU to prepare that the H-1B cap will be reached in January 2010, and may even be reached by year’s end.

The H-1B is the common employment-based nonimmigrant visa. 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.

Generally speaking “new” H-1B petitions are subject to the H-1B cap. Employees that may need an H-1B visa 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; and

- Prospective international employees currently living abroad.

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

The future of nursing and the H-1B

H-1B visas for nurses can be difficult, although many are approved each year. The key driver for success is not the applicant’s credentials, but the hospital/facility’s educational entry requirements for the position. In order to obtain an H-1B visa, the position must require a Bachelors degree as the minimum educational requirement for the position.

The USCIS has struggled with this concept; they tend to be skeptical of H-1Bs for nurses. The seminal USCIS Guidance Memo was written in 2002, and has not been updated to account for the fact that many hospitals and facilities now require a Bachelors degree for all of their nurses. This is especially true in certain units and in magnet facilities.

The New York Times says that about 50% of all nurses hold a Bachelors degree. It should not come as a surprise to the USCIS that the Bachelors degree requirement increasingly is becoming the norm. The Johnson Foundation, long on the cutting edge of nursing educational studies, is cited in the Times piece. JF contends that growing that number to 80% is a realistic and worthwhile goal. As the number of Bachelor degreed nurses swells, the H-1B likely will become even a more viable immigration strategy.

December 2010 Visa Bulletin

The Department of State has just released the December 2010 Visa Bulletin, which is the third Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had small progress in several classifications.

December 2010 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	08JUN06	08MAY06	Current
EB-3	22FEB05	08DEC03	22JAN02	01JUL02

New Location? No new H-1 is necessary

In April the USCIS announced a forthcoming change to the I-129, which is the base Form for H-1B petitions. The proposed Form included a little-noticed new requirement that an amended H-1B Petition must be filed whenever a H-1B worker changes his geographical location. This was inconsistent with prior USCIS guidance.

Musillo Unkenholt noticed this proposed requirement and realized that it would have a devastating effect on H-1B employers and employees who routinely move to new locations. We sent an official comment letter to USICS in which we raised our concerns. Our letter cited five prior instances where the USCIS had said that no amended H-1B was necessary when an H-1B worker changes a geographical location.

While the final revised Form I-129 will not be officially released until November 23, 2010, it appears that the USCIS has agreed with MU’s position. The Instructions to the new Form I-129 omit any requirement that an amended H-1B Petition must be filed whenever an H-1B worker changes his geographical location.

MU commends the USCIS for an open process and a recognition of past guidance.

Keeping our eye on the H-1B Count

by Cindy Unkenholt and Chris Musillo

Keeping our eye on the H-1B Count: According to the USCIS as of November 5, 2010, approximately 46,800 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 17,200 H-1B petitions for aliens with advanced degrees. There are 65,000 “regular” cap-subject visas and 20,000 “advanced degree” H-1Bs”.

Several healthcare occupations regularly utilize the H-1B visa including, Physical Therapists, Occupational Therapists, Speech Language Pathologists, and some Registered Nurses.

NPTE-i Registration and Lawsuit

Physical Therapists educated in the Philippines, India, Egypt and Pakistan are now eligible to register for the NPTE-i. The NPTE-i is the FSBPT’s licensing exam will be given on May 25, 2011. FSBPT claims that the segregated exam is necessary because of pervasive, ongoing security breaches by graduates of physical therapy schools from these countries, although their evidence for this claim is unavailable to the public.

Several plaintiffs sued the Georgia Board of Physical Therapy earlier this week. The lawsuit alleges that the FSBPT’s examination policy is discriminatory and violates both federal and state law, and that this discrimination is intentional.

The lawsuit also names the FSBPT as a Defendant. Success in that lawsuit likely will compel the FSBPT to revoke their policy, although it may take many months before any resolution is reached. If you are interested in participating in the lawsuit, you are encouraged to contact the AAIHR, which is working with the lawsuit’s Plaintiffs.

USCIS Fees Increase

MU VISA ADVISOR: USCIS Filing Fee Increase


Effective November 23, 2010 USCIS filing fees will increase an average of 10%. Most employment-based petitions’ fees will be raised, although the dependent Form I-539, used for H-4, L-2, and several other status petitions, will decrease by $10.

Here is the chart of the increase for the most commonly-used employment-based immigration Forms.

New Fees Nov 23, 2010
I-129	$325
I-131	$360
I-140	$580
I-485	$1,070
I-539	$290
I-765	$380
I-907	$1,225

You can find the new fees on the USCIS’ webpage: www.uscis.gov.

AAIHR to sue FSBPT over Discrimination Policy

The AAIHR just has announced that it will be pursuing a legal strategy against the FSBPT. The AAIHR has been working with several Attorneys General (AG) offices in strategic states to outline the governance issues and vulnerability of the states based on the FSBPT action. It also has hired litigation counsel, Latham and Watkins, a major litigation firm. The litigation counsel has prepared a Complaint against Georgia and FSBPT on behalf on plaintiffs. The Complaint will be filed soon.

If the lawsuit in Georgia is successful, it likely will end the FSBPT’s discriminatory test administration policy. AG's offices in several states have been contacted and made aware of the AAIHR’s position. Many states have expressed off-the-record concern about the FSBPT’s actions. Because of the deliberate nature of the state’s AG’s offices, the AAIHR has chosen the litigation path.

The AAIHR is looking for additional members to support their action. If you can contribute financially, please contact AAIHR President, Patty David.

MU is an associate member of the AAIHR and has been working with the AAIHR to outline the legal strategy. We have donated both time and funding to the effort.

MU as AILA Faculty

MU’s Chris Musillo is one of the three presenting faculty members for the American Immigration Lawyers Association's November 4, 2010 teleconference on Allied Health Care Immigration. The speakers' topics of discussion include: trends with licensing examinations, visa screening and state licensing for foreign allied health care professionals. Additionally they will address pitfalls and identify effective practices in these areas:

Occupations and Professions Covered: RNs, OTs, PTs
Nonimmigrant Visa Options: TN, H-1B, E-3
Immigrant Visa Options: Schedule A, NIW, PERM
Issues with Visa Screen, Licensing and Timing for Filings
Options in the Absence of Visa Screen
Current Adjudication Trends
Potential Legislative Changes and Strategies

Interested AILA lawyers can participate by contacting AILA. CLE credit is available.

NPTE-i Registration and Filing Fee

The NPTE has just announced that, contrary to prior indications, there will not be any difference in registration fees for the regular NPTE and the NPTE-i. The registration fee remains $370.00. Readers are alerted that registration for the May 2011 NPTE-i begins November 1. It is unclear what the demand for the exam will be and so qualified applicants are encouraged to register.

Weekends Count

One of the sillier assessments made by the US Department of Labor has been its interpretation of a “business day” for purposes of satisfying the 10 day Notice Posting rule. An October 12, 2010 DOL decision puts much more rationality to the interpretation of a “business day” by now allowing an employer to count all of the days that it is open for business.

The Notice Posting rule requires employers to post Notice of a potential Labor Certification Application (including Schedule A Application) at the worksite for 10 business days. The idea behind the law is to give US workers notice of the future Labor Certification, so that they can notify the DOL of any wrongdoing by the employer. Before this decision, the DOL steadfastly had held that a “business day” is a weekday (Monday through Friday) and that federal national holidays would not count as business days.

This interpretation had been particularly irritating for healthcare employers, who routinely are open for business on weekends and holidays. Immigrant visa cases would be needlessly delayed because of this silly interpretation. Occasionally, we would even hear of a case has been denied because of a posting that was done during a minor federal holiday, in spite of the fact that the employer’s hospital remained fully staffed.

The DOL’s Appeal Board, the Board of Alien Labor Certification Appeals (BALCA) thankfully has ended this nonsense. The BALCA opinion makes the vital point that “the purpose of the Notice of Filing requirement is to ensure that an employer’s employees and other interested persons are notified that it is filing an application for permanent alien labor certification.”

Going forward, employers can satisfy the 10 business day Notice posting rule by placing Notice for ten consecutive days when employees are on the worksite and able to see the Notice of Filing.

November 2010 Visa Bulletin

The Department of State has just released the November 2010 Visa Bulletin, which is the second Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had small progress in several classifications.

The present processing dates are:

EB-1 – all current
EB-2 – all current, except China (01 JUN 06) and India (08 MAY 06)
EB-3 – all 22 JAN 05, except China (22 NOV 03), India (22 JAN 02), and Mexico (01 MAY 01)

California Board Webcast on FSBPT

by Cindy Unkenholt

California continues to fight the disciminatory actions of the FSBPT. The Physical Therapy Board of California's October 11, 2010 teleconference regarding the FSBPT action on the NPTE will be webcasted live. All interested parties may watch it via the webcast.

NPTE-i

As expected, the FSBPT today announced that the NPTE-i (formerly the NPTE-YRLY) will be given twice in 2011, starting with the first NPTE-I exam on May 25, 2011 and the second in December. The exam will be given in all 50 states, along with the District of Columbia, Puerto Rico and the Virgin Islands.

The NPTE-i expected to be substantially similar to the regular NPTE.

Here is the calendar of important dates for the first exam:

November 1, 2010 – Registration opens with FSBPT
November 8, 2010 – Scheduling opens with Prometric
February 22, 2011 – Registration closes
March 15, 2011 – Last date for jurisdictions to approve PT candidates for NPTE-i
April 1, 2011 – Last date for candidates to schedule with Prometric

May 25, 2011 – TEST DATE NPTE-i PT
June 8, 2011 – Scores reported to jurisdictions

It remains to be seen how the State Board of California reacts to this announcement, since the NPTE-i does not comply with the two alternatives that California outlined in its recent letter to the FSBPT.

Predicting This Week

MU doesn’t like to do too much crystal ball gazing unless we are confident of its information and the information is public. Two things will almost certainly happen this week:

1. The FSBPT is likely to formally announce its plan for the NPTE-YRLY exam. The plan will be slightly better than what they’ve published so far, but not much more. Check their blog for the formal announcement, which should come Thursday.

2. It appears that Sen. Robert Menendez will formally introduce his immigration bill to Congress. Unfortunately the bill has virtually no chance of approval anytime soon, although some are holding out hope that the bill can get traction during the lame-duck session, in November and December.

What is "propensity" and what is "widespread"?

The FSBPT’s September 22, 2010 update to their blog attempts to answer the question, “Why didn’t you stop testing for all candidates?” Their answer, however, should raise significant issues about the logic behind their policy and their standard of review.

The blog posting says that graduates from universities from the four restricted countries – India, Philippines, Pakistan, and Egypt -- have apparently shown a “propensity” toward “widespread” sharing of NPTE questions. The FSBPT has yet to define “propensity” and “widespread” in any dialogue with members of the public and state boards of Physical Therapy. Every time the FSBPT hides behind these vague words, it calls into serious question the FSBPT’s rationale and raises questions of this policy’s true intent.

The FSBPT also says that “the exam itself has not been compromised by any groups beyond the restricted groups". This of course, does not mean that it hasn't been compromised by any individuals within those groups. If compromised questions were exposed to the internet (and every indication is that they were), then individuals beyond the restricted groups have cheated. To say otherwise is disingenuous.

Moreover, since there are many more individuals in non-restricted groups, the standard of review for these groups should be greater because the damage would be far greater. For instance, if there are 1,500 restricted country test takers and 10 percent have cheated, then there are 150 restricted country cheaters.

On the other hand, if there are 15,000 non-restricted country test takers and just 1 percent has cheated, then there are 150 additional cheaters. American patients don’t care about the nationality of the cheaters; they just want all 300 cheaters to be banned from the test. The FSBPT’s program catches the first 150, but does nothing about the second 150.