HOUSE PASSES HR 3012

On Tuesday, November 29, the House of Representatives passed HR. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15. The Senate must now consider the bill. If the Senate passes HR 3012, President Obama is expected to sign the HR 3012 into law.

The measure, if passed into law, would eliminate the per country numerical limitation for employment-based immigrants. The Immigration and Nationality Act generally provides that the total number of employment-based immigrant visas made available to natives of any foreign country in a year cannot exceed 7% of the total number of such visas made available in that year. The bill eliminates this per country percentage cap in a phased in process between 2012 and 2015.

SEATING OPTIONS FOR THE NPTE

The next National Physical Therapy Exam is scheduled for December 5, 2011. The NPTE’s website regularly publishes the lists of test sites and the number of seats that are available for each site. The list breaks down by individual Prometric facility. Prometric is the independent test administrator for the NPTE. The NPTE is written and graded by the Federation of State Boards of Physical Therapy (FSBPT).

H-1B CAP REACHED

The USCIS announced that the Fiscal Year 2012 H-1B cap was reached on November 22, 2011. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that arrive after November 22, 2011.

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 must wait to file their Petition until April 1, 2012, for an employment start date of October 1, 2012. "Cap-subject" H-1B 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

H-1 CAP TO BE REACHED BEFORE THE END OF NOVEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible.  MU now believes that the H-1B cap may be reached before the end of November.

The latest USCIS update is that 56,300 of the 65,000 regular H-1B numbers have been used as of November 14, 2011, leaving about 8,000 H-1B visas.  The demand for H-1B numbers has surged in the last few weeks.

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
• Prospective international employees currently living abroad

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.

The USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”.  The H-1B Masters Cap has been reached.  H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

DECEMBER 2011 VISA BULLETIN

The Department of State has just released the December 2011 Visa Bulletin. The December Visa Bulletin is the third Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about three months.

Dec 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15MAR08	15MAR08	Current
EB-3	15JAN06	08SEPT04	01AUG02	15JAN06

EB2 FOR PHYSICAL THERAPISTS

For many non-Indian and non-Chinese natives, the EB-2 Permanent Residency visa (green card) provides a fast and cost-effective alternative to the H-1B process. The EB-2 also allows for a much faster green card process when compared to the EB-3 Permanent Residency process.

The EB-2 is available when the employer requires a Masters Degree for entry into the position and the Physical Therapist holds a Masters Degree. USCIS regulation says that a Masters Degree is equivalent to a Bachelors Degree and five years of progressive experience.

MU Law has successfully applied for the EB-2 for many Physical Therapists who have five years of progressive experience in occupation after the attainment of their Bachelors degree.

The USCIS has been inconsistent in their adjudication of Physical Therapist EB-2 Petitions when the Therapist holds an FCCPT “first professional degree” evaluation. The inconsistency largely is due to some degree being titled, Bachelor Degree, when in fact, these degrees are equivalent ot a US Masters Degree.

Legally speaking, the USCIS ought to be approving these Petitions since the independent FCCPT evaluations equate the Physical Therapists foreign degrees to a US Masters Degree. FCCPT is a premier credentialing evaluator for Physical Therapists. In May 2010, its FCCPT Type I Certification was re-certified by the USCIS until 2015. CGFNS offers a similar certification called the Visa Screen. CGFNS is also a premier credentialing evaluator for Physical Therapists.

MU Law successfully has filed many EB-2 Petitions for many Employers and Therapists. These Petitions are not simple filings, but require a substantive legal analysis of the employer’s hiring practices and the Therapists’ educational background. If you are interested in having an MU attorney review your matter for applicability as an EB-2 Permanent Residency green card, please contact Chris Musillo or Cindy Unkenholt.

H-1B CAP TO BE REACHED IN DECEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible. The H-1B cap likely will be reached in December 2011.

The latest USCIS update is that 49,200 of the 65,000 regular H-1B numbers have been used as of October 28, 2011, leaving 15,800 H-1B visas. Based on prior year’s usage, MU expects that the demand will rise again in November. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

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
• Prospective international employees currently living abroad

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.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”. The H-1B Masters Cap has been reached. H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

UPDATE! USCIS I-797 APPROVAL NOTICES

Last week, MU Law notified its clients of a USCIS policy change, in which the USCIS was sending I-797 Approval Notices to Petitioners and Beneficiaries, instead of sending these documents to the Petitioners and Beneficiaries' designated representatives and lawyers.

In a quick break from this policy, USCIS Director Mayorkas announced that the USCIS will revert back to the long-standing policy of sending I-797 Approval Notices to the Petitioners and Beneficiaries' representatives and lawyers. MU Law applauds this reversion of policy. The USCIS is often lambasted for ill-thought out policy. It is therefore only right to highlight when they make the right decision.

NEW H-1B WHEN A CHANGE IN GEOGRAPHICAL LOCATION?

Staffing companies provide value in industries where there is a shortage of qualified labor because the ability for flexible labor is great. Similarly, high rates of immigration are common in occupations where there are shortages of labor.

It is therefore understandable that many companies that employ large numbers of immigrants are staffing companies. The H-1B visa is the most common visa vehicle for these workers. Healthcare staffing companies often employ Physical Therapists and Occupational Therapists via the H-1B visa.

These companies often then have to move these workers to new geographical locations as dictated by client’s needs. While a new or amended H-1B visa is required when there is a material change in an employee’s job duties, a new or amended H-1B visa traditionally is unnecessary when an H-1B worker moves to a new geographical location.

As Musillo Unkenholt explained in an April 2010 letter to a public inquiry request by the USCIS,

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.

In AILA’s notes from an October 5 meeting with the USCIS, the USCIS implied that it may soon require a new or amended H-1B to be filed when there is a change in the worker's geographical location. The USCIS full comments were:

USCIS RESPONSE: This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review. We will take AILA’s views into consideration when finalizing the policy on what circumstances would require an amended petition to be filed with USCIS.

There is no rationale for a change in policy on this issue other than to create additional administrative burdens on H-1B Petitioners. Musillo Unkenholt hopes that the USCIS instead focuses its efforts on those who abuse the immigration system.

H-1B CAP COUNT: 41,000

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 41,000 H-1B cap-subject Petitions have been receipted by USCIS as of October 7, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

NOVEMBER 2011 VISA BULLETIN

The Department of State has just released the November 2011 Visa Bulletin. The November Visa Bulletin is the second Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about four months.

The Visa Bulletin contained a discussion about future EB-2 movement:

The November Employment-based Second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

Nov 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01NOV07	01NOV07	Current
EB-3	22DEC05	22AUG04	22JUL02	22DEC05

GENERATIONS HEALTHCARE SUED BY DOJ

The US Department of Justice filed suit against Generations Healthcare, a Skilled Nursing Facility, on Friday September 30, 2011. The lawsuit alleges that Generations Healthcare engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on job applicants.

The DOJ’s press release says that its investigation uncovered evidence that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status. These documents were not required of native-born US citizens.

MU Law clients and friends are reminded that US employers have to comply with the Form I-9 when hiring new employees. The Form I-9 identifies a variety of documents that may be used by job applications to prove valid work authorization and identity; it does not mandate that any specific document must be used.

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT

Congressman Jason Chaffetz (R-UT) has just introduced HR 3012, The Fairness for High Skilled Immigrants Act. The bill, if passed into law, would eliminate the per country numerical limitation for employment-based immigrants. The Immigration and Nationality Act generally provides that the total number of employment-based immigrant visas made available to natives of any foreign country in a year cannot exceed 7% of the total number of such visas made available in that year. The bill eliminates this per country percentage cap.

If passed, the Act greatly improves the processing times for Indian and Chinese green card applicants. An unintended consequence of the Act likely would be the slowing of processing for natives of all countries.

The Act is supported by the US Chamber of Commerce, Compete America (a coalition of high tech companies (Microsoft, Google, Oracle, etc.) and various trade groups. The Act has been the primary motivation behind Immigration Voice.

The Act is co-sponsored by House Judiciary Chairman Lamar Smith (R-TX). The bill also adjusts family based visa limits from 7% per country to 15% per country.

Before the Act can become law, it will have to attract more co-sponsors and be recommended for a vote in the US House of Representatives. Once it passes the House, the Act will have to be passed by the US Senate. President Obama almost certainly would sign the Act into law.

THE LEARNING

The US public television network, PBS, has been airing the documentary, The Learning, on local PBS stations around the country. The Learning tells the tale of four Philippine elementary school teachers as they migrate from their Philippine homeland and into inner-city Baltimore. The teachers laugh, cry, dance, and sing their way through their adventure, all the while balancing their love of their homeland with classrooms of unruly children in one of America’s gravest inner cities.

The compelling nature of the quest would make for a tight 90 minutes of viewing regardless of the subject-immigrants, but the radiance of these women raises the documentary to compelling viewing.

Their desire to help family and friends through remittance payments underscores the entire film. The most gripping scene occurs when one of the teachers, Angel, returns to her homeland and has to explain to her family that the American money “does not grow on trees,” as only a beloved schoolteacher can explain. Angel, like her three colleagues, never stops teaching – the children, her family, and we the viewers.

The film is streaming for free through October 20 on PBS’ website – unfortunately the streaming is only available in America. MU Law highly recommends The Learning for any reader of this Blog and anyone interested in first-person accounts of the modern immigrant experience.

NPTE TEST DATES

The NPTE announces these test dates for the next several dates. In order to schedule for one of the two upcoming exams, please click:

October 26, 2011 (Updated 9/19/2011)

December 5, 2011 (Updated 9/19/2011)

NPTE Test Dates
	Test Date	Registration Deadline	Jurisdiction Deadline	Scores Reported
	Oct 26, 2011	Sept 26, 2011	Oct 10, 2011	Nov 2, 2011
	Dec 5, 2011	Nov 5, 2011	Nov 21, 2011	Dec 12, 2011

Future dates in 2012 are available at the FSBPT webpage.

H-1B CAP COUNT: 32,200

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 32,200 H-1B cap-subject Petitions have been receipted by USCIS as of September 9, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 38,000 H-1Bs through September 17, 2010. Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

For three years the H-1B demand has decreased. This is compelling evidence that H-1B workers are not used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy, since US employers would still want to save money on salary expenses.

OCTOBER 2011 VISA BULLETIN

The Department of State has just released the October 2011 Visa Bulletin. The October Visa Bulletin is the first Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the dates moved up slowly but steadily, averaging a one month improvement.

Oct 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15JUL07	15JUL07	Current
EB-3	08DEC05	08AUG04	15JUL02	08DEC05

The Visa Bulletin included this prediction on future movement of dates:

Employment Second:

Worldwide: Current

China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all Employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.

Mexico: Current
Philippines: Current

Employment Third:

Worldwide: up to one month
China: one to three weeks
India: up to two weeks
Mexico: up to one month
Philippines: up to one month

MU AS AILA FACULTY

MU’s Chris Musillo is one of the three presenting faculty members for the American Immigration Lawyers Association's September 13, 2011 teleconference on Consular Issues impacting Immigration: India, Philippines, and China. Chris will be speaking on hot issues effecting processing at the US Embassy in Manila.

From the AILA new release:

Which are the consular posts that process the highest volume of visa applications? What are the most common issues visa applicants and their attorneys face when dealing with these posts? Are there ways to minimize the stress involved in processing H-1Bs and Blanket L and individual L-1 applications?

The seminar wraps up with a Q&A session and will cover the following topics:

• Common Issues with H-1B, Blanket L and Individual L Applications at Post India
• Common Issues Faced by Applicants In Consular Posts In China
• Overcoming 214(b) at American Embassy in Manila When Seeking a Visa to Take a Licensing Exam
• How to Deal with Delays Caused by Administrative Processing

To register for this teleconference, please visit the AILA website. The teleconference is approved for CLE credits in most states.

PWD UPDATE

The Prevailing Wage Determination (PWD) usually is the first step in the processing of an employment-based green card. This is a necessary beginning step for most occupations, including IT and healthcare occupations. The PWD is filed with the US Department of Labor (DOL).

In July, the DOL ceased processing PWDs as the direct result of a lawsuit affecting their H-2B applications. As a result of that lawsuit the entire PERM and Schedule A green card system has been disrupted.

Until the DOL re-commences the processing of PWDs, PERM and Schedule A green card cases may be delayed. It does appear that the resolution is forthcoming. There are reports that the first PWDs in several weeks have been received by the immigration community. If you have any questions on this, please do not hesitate to contact Musillo Unkenholt.

H-1B CAP UPDATE: 25,300

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 25,300 H-1B cap-subject Petitions have been receipted by USCIS as of August 12, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 30,000 H-1Bs through August 1, 2010. In FY 2009, there was about 47,000 H-1Bs receipted in by USCIS through September 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

For three years the H-1B demand has decreased. This is compelling evidence that H-1B workers are not used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy, since US employers would still want to save money on salary expenses.