MU LAW'S MARIA SCHNEIDER WINS INGENUITY AWARD

MU Law attorney Maria Schneider is the founder and chair of the Cincinnati Bar Association’s (CBA) Immigration Law Committee.  The Immigration Law Committee recently won the CBA’s Ingenuity Award, for the second year in a row.  The Ingenuity Award is given to a CBA Committee, which in the past year has displayed a commitment to strengthening its purpose and function through membership development, successful continuing education seminars, creative programs and other notable accomplishments. 

The Immigration Law Committee focused on advanced topics within the practice of immigration law, hosting monthly meetings featuring speakers and round table discussions among experienced practitioners.  This year’s meetings included a tour of the Customs and Border Patrol post at the Greater Cincinnati Airport.  This month, the committee hosts Ellen Kinker, a caseworker from Sen. Rob Portman’s (R-OH) office.

CONGRESS VACATES

The US Congress will begin its summer recess tomorrow.  Like schoolchildren, they take much of the summer off.  This year's promised  Comprehensive Immigration Reform has now been tabled until after they return in September.  

The Senate has done its job.  It passed a bi-partisan immigration bill by a healthy margin, which included both good and bad things for the healthcare industry.  

The Republican-controlled House has stalled.  The lower-level House Judiciary Committee has passed a small business based immigration bill, the SKILLS Act. Will the full House move on a bigger Comprehensive bill in September?

  

Some see hopeful signs.  Immigrants and employers are pressing their concerns directly to House members, who have returned to their home districts for the Summer Recess. Some Republicans leaders, such as Speaker John Boehner (R-OH) and one-time Vice Presidential hopeful Paul Ryan (R-WI) reportedly have been working behind the scenes to encourage colleagues to produce a bill.  

Hopeful these efforts can lead to a productive autumn.

NPTE TEST DATES FOR 2014

The FBSPT has recently published the 2014 National Physical Therapy Exam (NPTE) test dates.  MU Law reminds readers to schedule their 2014 Physical Therapy NPTE exams.  

Keep in mind that the FSBPT uses a fixed-date testing process.  The FSBPT approach is different than other healthcare occupation's examination processes, which allows for rolling testing dates. FSBPT believes that their fixed-date testing system provides the most secure exam for their industry.

Be sure to register well in advance in order to insure that your seat is reserved.

Test Date	Registration Payment Deadline	Jurisdiction Approval Deadline	Seats are reserved for PT candidates until:	Scores Reported to Jurisdictions
January 29, 2014	December 23, 2013	Jan. 2, 2014	January 15, 2014	February 5, 2014
April 30, 2014	March 26, 2014	April 2, 2014	April 16, 2014	May 7, 2014
July 22&23, 2014	June 17, 2014	June 24, 2014	July 8, 2014	July 30, 2014
October 29, 2014	Sept. 24, 2014	Oct. 1, 2014	Oct. 15, 2014	Nov. 5, 2014

HEALTHCARE IS FIVE PCT OF H-1Bs

The USCIS has just released its Characteristics of H1B Specialty Occupation Workers report.  As its name implies, the report contends loads of data about the H-1B program.  Notable for readers of this blog is that Occupations in Health and Medicine made up approximately five percent of all H-1Bs petitions approved in 2012 (Table 8A).  Keep in mind that these figures include H-1B extensions and concurrent H-1Bs.  The data does not break out H-1B cap-subject petitions.

The report details a load of interesting data, including the below excerpt from the summary.  The data refutes much of the complaints about the H-1B program, including the criticism that it is used as a way to facilitate cheap foreign labor.  The median salary of $70,000 is much higher than the US median salary of $26,695.  The average Computer Programmer salary was $71,380, more or less in-line with the overall H-1B salary figure listed in this report.

·                     The number of H-1B petitions filed increased 15 percent from 267,654 in FY 2011 to 307,713 in FY 2012.

·                     The number of H-1B petitions approved decreased 3 percent from 269,653 in FY 2011 to 262,569 in FY 2012.

·                     Seventy-two percent of H-1B petitions approved in FY 2012 were for workers between the ages of 25 and 34. 

·                     Forty-six percent of H-1B petitions approved in FY 2012 were for workers with a bachelor’s degree, forty-one percent had a master’s degree, 8 percent had a doctorate, and 4 percent were for workers with a professional degree.

·                     Sixty-one percent of H-1B petitions approved in FY 2012 were for workers in computer-related occupations.

·                     The median salary of beneficiaries of approved petitions remained at $70,000 for both FYs 2011 and 2012.

GUILTY VERDICT IN H-1B NURSE SCHEME

Last month MU Law posted a blog about an alleged H-1B nurse visa scheme that resulted in a federal indictment and trial.  The verdict is in.  US Citizen Kizzy Kalu was found guilty of 89 criminal counts, including visa fraud, mail fraud, money laundering, and human trafficking.  

The allegations included information that Mr. Kalu misled the USCIS, alleging that the nurses would work as instructors/supervisors at Adam University.  Nurse instructor/supervisors are generally held to be specialty occupations, which makes these positions eligible for H-1B approval. 

The prosecutors proved that Adam University existed largely in name only and had no genuine need for nurse instructor supervisors.  The nurses actually worked as regular nurses at salaries below prevailing wage.  Regular nursing positions are usually ineligible for H-1B approval.

The government also proved that Mr. Kalu forced the nurses to kick back a portion of their salary and threatened to have their visas revoked if they did not comply with his scheme.  The full press release is available on the US Department of Justice’s website.   Mr. Kalu's sentencing is set for September 23, 2013.

AUGUST 2013 VISA BULLETIN

The Department of State has just released the August 2013 Visa Bulletin.   There has been a dramatic jump for India EB2.  MU Law expected that an India EB2 progression would happen, although it took a lot longer than we expected.  Suffice it to say, had it happened earlier in the year, today's  jump would not have been as dramatic.  Nevertheless, the India EB2 jump is welcome news.

Unfortunately, no other category moved more than a few weeks and most employment-based categories did not move at all.

August 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08AUG08	01JAN08	Current
EB-3	01JAN09	01JAN09	22JAN03	22OCT06

SIA ARTICLE: BENEFIT OF COUNSEL

MU Law's Chris Musillo was asked to author an article for Staffing Industry Analysts.  SIA has published an article in SIA's July issue of SI Review.   An internet copy of the article appears on the SIA webpage.

In the article Chris discusses the Comprehensive Immigration Reform debate and what may happen if CIR is passed.  Chris concludes:

Contingent labor and staffing companies have traditionally been large users of foreign-trained employees. These employees have proven to be beneficial for employers and American society as a whole. It is incumbent on the industry to make sure that Congress hears this story or else misperceptions, and not realities, will drive future legislation and regulation.

HOUSE STARTS MOVING: SKILLS ACT PASSES

The House Judiciary Committee has passed the Supplying Knowledge Based Immigrants and Lifting Levels of STEM Visa Act (SKILLS Act).  Rep. Darrell Issa (R-CA) sponsored the SKILLS Act.  He has 20 co-sponsors. 

The SKILLS Act would nearly triple the H-1B cap and also increase employment-based green card numbers.  Notably, Sec. 110 of the Act sets aside 4,000 immigrant visas for healthcare occupations, including nurses, physical therapists, occupational therapists, and other allied healthcare workers who work in rural or undeserved areas.  These immigrant visas are immediately available and not subject to retrogression.  

This is the first step toward a House CIR bill.  The House is expected to spend the summer debating, proposing  and amending a variety of provisions.  Together these provisions will become the House CIR bill.  

The House may administratively decide to have several smaller bills, rather than one large CIR bill, as has been done in the Senate.  It remains to be seen if this strategy proves to be successful.

BREAKING! SENATE PASSES CIR

Today the Senate took the historic step of passing Comprehensive Immigration Reform, Senate bill S. 744.  This is a significant step on the path to the bill becoming law.  It is important to note that nothing has changed with this action.  While we are much closer, we are still quite a ways from any legal change.  The House must act.  The House is more conservative than the Senate. 

S. 744 does many things.  Many of the specifics will change as the House takes action.  Therefore it is much too early for employers to plan for CIR. 

What the House will do is a wide-open question.  The House will likely move slowly.  There are many factions of Republicans who are struggling to reconcile their disparate opinions.  If the Republicans can agree on the House side, then a House CIR bill could pass. 

Even if that happens, there is no guarantee that the senate and House bills can be reconciled.  At this point the odds are 50/50 that we get CIR in 2013, and the odds improved significantly with today’s Senate vote.

MU Law has been to Washington on several occasions in the last 90 days to speak with Congressional staff about employment-based immigration issues.  While no one knows what the final CIR bill will look like, but if CIR passes it will have these characteristics:

Greater H-1B visa numbers.  Current law allows 65,000 new “regular” H-1B visa approvals every fiscal ear and an additional 20,000 for graduates of American Master’s degree programs.  American businesses have regularly asked Congress to raise this H-1B quota.  Congress is hearing the call.  Most potential legislation calls for increased H-1B numbers.

Increased H-1B Enforcement. The trade-off for the greater H-1B numbers is greater enforcement regulation.  All versions of CIR step up funding for H-1B enforcement.

Special Third Party Placement Rules for H-1B Employers. Since January 2012, USCIS has held staffing companies to a higher level of scrutiny. Congress is now going further.  Placing employees at third-party worksites is outright prohibited for some employers and highly regulated in others.  

Abundant Green Card Numbers.  By increasing green card numbers, Congress hopes to incentivize employers and workers to become permanent residents. . This should mean faster green cards and less worrying about quotas.

E-Verify is here to stay.  E-verify is a federal program whereby voluntary employers can check a prospective employee’s work authorization.  Government contractors and some states have made E-verify mandatory.  Congress appears ready to require E-verify for all employers, likely phasing it in over a few years.

Shifting from Family Based Visa Numbers to Merit Based Immigrants.  One part of the CIR plan is that Congress appears to have settled on a merit-based green card.  A merit-based system would allow the Department of Homeland Security to weigh a number of factors, such as education, job prospects, US ties, and English fluency to prioritize an applicant’s visa.  The merit based system will come at the expense of the family categories and will eliminate the visa lottery program.

AILA DINNER

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Most years we have about 15 people.  It is a great chance to catch up with old friends (and new ones!). It is a casual event.

If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by June 21. Friends, spouses, etc. are also welcome.

OTED REMINDER: DOCUMENTATION DUE BY JULY 31

The National Board for Certification in Occupational Therapy recently issued a reminder about Occupational Therapy Eligibility Determination (OTED) standards.  The OTED processes applications from non-US trained Occupational Therapists.  The criteria for submitting an OTED application is that the foreign-trained OT must have an educational background that is comparable to a US-entry Occupational Therapist.  This entry standard has been a master’s degree since January 1, 2013.

OTED now reminds applicants that after July 31, 2013 all applications will be closed unless the application includes evidence that a US-equivalent Master’s Degree has been obtained.  Documentary evidence includes:

- Official school transcript

- Official Course Syllabi with descriptions

- Verification of Academic Credential Form

- Program Director Form

- Verification of OT License, Registration, Certification or Other Form of Official Government Recognition Request form

TRIAL STARTS IN ALLEGED NURSE INSTRUCTOR VISA SCHEME

A Colorado trial started this week in which US Attorneys allege that US citizen Kizzy Kalu lured foreign-educated Nurse Instructors to the US to teach at Adam University, a fictional college.  The US Attorney's claim that the Instructors paid Kalu's company, Foreign Heath Care Professionals Group,  and his business partner $6,500 expecting that they would have H-1B visa approval and Instructor positions that paid them $72,000 per year.  When they arrived in the US, FHCPG put them to work at low paying conventional nursing jobs and had to return part of their paycheck to Kalu or risk having their visas revoked.  

Kalu and his partner, Philip Langerham, were first indicted in March 2012.  Mr. Langerham has since reached a plea deal with the US Attorneys office and appears ready to testify against his ex-partner.

Kalu's attorney claims that the proposed jobs were always expected to be supervisory nursing jobs at long-term care facilities.   Supervisory nursing jobs and Nurse Instructor jobs are often permissible under the H-1B visa program.  FHCPG apparently hired a well-regarded immigration attorney to help with the H-1B processing.  According to the Denver Post, Kalu's defense is that the nurses never intended to adhere to their employment contracts and began fabricating stories in order to maintain valid immigration status.

JULY 2013 VISA BULLETIN

The Department of State has just released the July 2013 Visa Bulletin.  This is the first of the three fiscal-year fourth quarter Visa Bulletins.  The US Fiscal Year ends on September 30, 2013.

This Visa Bulletin continue to show steady progress in the EB-3 numbers for All Other and China.  We are now into 2009 for both categories.  

India's EB-3 remained in January 2003. India EB-2 remained frozen at September 2004.  The Philippines EB-3 modestly improved to October 2006.

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

July 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08AUG08	01SEP04	Current
EB-3	01JAN09	01JAN09	22JAN03	01OCT06

CIR MOVES FORWARD IN SENATE, LATERALLY IN HOUSE

The next steps on Comprehensive Immigration Reform are taking shape.  Whether it can be accomplished by the end of the summer is still an open question.  If CIR fails it will be because it is enormously difficult to get 435 House Representatives and 100 Senators to agree anything.

Senate Majority Leader Harry Reid (D- NV) says that a full Senate vote on CIR (S. 744) is expected to come before the July 4th Congressional recess.

Senator Harry Reid @SenatorReid The immigration debate on the Senate floor starts tomorrow. My goal is finish the process by July 4. youtube.com/watch?v=apMtiW… 02:14 PM - 06 Jun 13

S. 744 will need 60 votes to survive a filibuster.  The odds are better than even that S. 744's proponents can get the 60 votes.  S. 744 stalwart Sen. Rubio seems to be wavering but this may be politics on his part.   While sixty votes would be a victory, sixty-five or seventy would be better.  It would signal broad bipartisan support for S. 744 specifically and CIR generally. 

Once S. 744 is passed all eyes will be on the House.  The House had its own Gang of Eight crafting its own CIR bill.   This Gang of Eight has been downsized to a Magnificent Seven, with Rep. Raul Labrador (R-ID) leaving the posse.  While Rep. Labrador's abdication was not welcome news, the fact that the rest of the Republicans have decided to stay on the job implies that there is still a desire to get a House bill completed this summer. 

Before we can get to the House though it will remain to be seen just how many votes S. 744 can obtain in the Senate.  We should know the answer to this -- and to be better able to handicap the viability of CIR -- by the July 4 Congressional recess. 

FRAUDULENT DOCUMENTS FROM INDIRA GANDHI NATIONAL OPEN UNIVERSITY

The Foreign Credentialing Commission on Physical Therapy is tasked with reviewing the credibility of foreign educated Physical Therapist's transcripts.  A recent News Item on their webpage says that they will require additional documentation before they will approve any transcript from Indira Gandhi National Open University. 

FCCPT has apparently had a recent submission of fraudulent documents claiming schoolwork from this University.  It is unclear if this was an isolated incident or a repeated problem.  Graduates of Indira Gandhi National Open University should expect a delay in the processing of their FCCPT applications.

ELECTRONIC I-94 CARDS

In May, U.S. Customs and Border Protection (CBP) began implementing its plan to automate the Form I-94, Arrival/Departure Record.  CBP is substituting paper Forms I-94 with a passport stamp and an electronic record for some nonimmigrants arriving at air and sea ports.    Nonimmigrants arriving via a land border will continue to receive a paper Form I-94 from CBP.

The electronic record of admission may be accessed and printed at www.cbp.gov/I94.  Nonimmigrants are encouraged to print out their I-94 arrival record immediately after entry in order to insure that the information has been correctly inputted into the CBP electronic system.  If the information is incorrect, please contact us immediately.

NEXT STEPS ON CIR

Last week the Senate Judiciary Committee passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, or what is generally called Comprehensive Immigration Reform (CIR).  While this was a significant step, we are still a long way from actually having CIR as law.

S.744 does many things.  This post will not talk discuss the specifics of the law but will focus on the next procedural steps that must happen if CIR is to become law.

From here, the bill moves to the full Senate.  The conventional wisdom is that in June the full Senate will pass the bill.   After the Senate acts is where it gets interesting.

What the House will do is a wide-open question.   Some think that if the Senate passes the bill with a healthy majority, then the House will fall in line.  While the House will have its own bill, it may look a lot like S.744, if S.744 passes the full Senate with wide support.  For example, a 70/30 pass rate means that a lot of Republicans and Democrats have voted for it, which means strong bipartisan support. 

If this happens we would expect to see House action before their recess in early August.  Pres. Obama will certainly sign the bill; there is zero chance that he will veto it.  So the next key date is mid/late June to see what the full Senate will do.

On the other hand if the Senate cannot get to the “magic 70 number” then the House may craft a dramatically different bill, and predictions become muddy.  If the House starts from scratch with its own bill this could drag on for a while. 

At this point the odds are 50/50 that we get CIR in 2013, and the odds improved significantly with the Senate Judiciary Committee’s actions.

NEW USCIS IMMIGRANT FEE MUST BE PAID ON-LINE

On February 1, 2013, the USCIS instituted an additional $165 Immigrant Fee for immigrants who received their visas at U.S. Embassies and Consulates abroad.  The fee allows USCIS to recover the cost of processing the immigrant visa package and other information as well as producing and delivering the permanent resident card after immigrant visa holders are admitted to the United States.  This fee is in addition to the Department of State NVC immigrant visa fee.

Immigrants who receive their visas at must pay the fee online.   USCIS has moved the online payment of the USCIS Immigrant Fee to its Electronic Immigration System.  Customers must now pay the $165 USCIS Immigrant Fee using USCIS ELIS after they receive their immigrant visa package from the Department of State and before they depart for the United States. 

CAP-SUBJECT H-1Bs HAVE ALL BEEN RECEIPTED

The USCIS has confirmed through AILA that all 2013 H-1B cap-subject cases have been receipted in this past week.  This is a little quicker than we had expected.  If you have not received an H-1B receipt notice the chances are that your case did not win the H-1B lottery.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject is returning the petition along with the USCIS filing fees.

F-1 students who did not win the lottery must exit the US at the conclusion of their F-1/OPT period.

Many H-1B petitions are not subject to the H-1B cap, including:

* H-1B extension petitions

* H-1B transfer petitions

* Certain H-1B petitioners for University employers

* Certain H-1B petitions for Non-Profit Research organizations

JUNE 2013 VISA BULLETIN

The Department of State has just released the June 2013 Visa Bulletin.  

This Visa Bulletin showed incredible progress in the EB-3 numbers for All Other and China, each of which moved ahead by more than one year.  China's EB-2 numbers also improved, moving forward by two months.

India's EB-3 finally progressed into 2003, but it looking like a ten year Indian EB-3 retrogression shortly will be with us unless there is Comprehensive Immigration Reform.  India EB-2 remained frozen.

As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

June 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15JUL08	01SEP04	Current
EB-3	01SEP08	01SEP08	08JAN03	22SEP06