U.S. Jobs Outlook (Finally) Improving

Post written by Cindy Unkenholt

According to an article earlier this week that was featured on CNNMoney.com, the National Association for Business Economics is reporting that for the first time in nearly two years more employers are planning to hire, rather than cut, staff. Similarly, it was noted that more companies increased their capital spending than the number that cut spending. Unemployment is still at historically high levels, but this report is one of many signals that the worst may be over.

While this is clearly good news -- demand for Physical Therapy, Registered Nursing, Occupation Therapist, Speech Langauge Pathologists and other healthcare occupations still expect to be in great demand -- a word of caution may also be in order. An improving job market in the U.S. will likely eventually be reflected in an increase in H-1B petitions filed with the USCIS. Among the top twenty occupations predicted for significant growth were several in IT and healthcare, including: Systems Engineers, Physical Therapists, Computer/Network Security Consultants, Software Developers, and Occupational Therapists. These occupations have been common users of the H-1B program in the United States. Physical Therapists, for example, have long been designated by the U.S. Department of Labor as a national shortage occupation and recruited from abroad.

The USCIS last updated the 2010 H-1B "Cap Count" on September 25, 2009. At that time, there had been approximately 46,700 H-1B petitions filed towards the annual quota of 65,000. Most casual observers see that this is only a few thousand more than were filed as of April 1, 2009, the first day employers were able to file H-1B petitions for the current fiscal year. However, insiders believe that while the economy has significantly reduced the number of H-1B petitions being filed. There has also been a large increase in denials which has impacted the overall number of petitions counted against the quota.

As the U.S. economy and job market continue to improve, the number of H-1B filings may begin to steadily increase. In the short term, there appears to be no cause for alarm. However, if you anticipate any key hires or significant staffing increases, it may be prudent to keep your eye on the cap count in the first quarter of 2010.

FCCPT News

The Foreign Credentialing Commission on Physical Therapy (FCCPT) is one of the two US government-approved organizations that are authorized to evaluate the educational credentials of internationally-trained Physical Therapists. FCCPT has just launched a new website which is easier to use than their prior website. The new site allows for electronic tracking and reporting.

In other FCCPT news, FCCPT recently discontinued use of the Type II Certification. Now all applicants to FCCPT must obtain the Type I Certificate. FCCPT has also announced the implementation of the most current Coursework Evaluation Tool-5, for use as of July 1, 2009. Any evaluations for current standards begun after July 1, 2009 will reflect the requirements on the new tool CWT-5.

MU at ASHHRA

MU’s Chris Musillo has been selected as a Speaker at the American Society for Healthcare Human Resources Administration’s (ASHHRA) 45th Annual Conference in Chicago. ASHHRA is the US’ premier organization exclusively dedicated to meeting the professional needs of human resources leaders in health care. More than 3,350 human resources professionals across the US are members.

The Annual Conference takes place in Chicago and runs from November 1-3, 2009. Chris’ session is Monday at 4:45 and is one of the Learning Sessions.

Chris’ talk will be on Strategic Healthcare Immigration. He will demonstrate the best practices in recruiting foreign trained RNs, PTs and other allied professionals. The session will highlight pitfalls in the process, and advise human resource professionals on how to avoid such pitfalls.

If you are attending the conference, please contact Chris if there are any specific items that you would like him to address.

The pieces are being put on the chessboard

Sometime in the next few months, the US is going to revisit its ongoing discussion on immigration reform. The leading plan seems to be for Congress to address the issue via a Comprehensive Immigration Reform (CIR) package. CIR is expected to address many issues, including hot-button issues such as undocumented workers.

The big question is how Congress will remedy its immigration policy for healthcare workers. For some occupations, the current program is unworkable. For instance, it presently takes about 7 years for a fully qualified nurse to enter the US.

These RNs are fully qualified. They have graduated from international schools and had their education validated by US states' Boards of Nursing. They have taken and passed the US NCLEX licensure exam, and met all other individual state requirements for licensure, including passing English fluency exams. Every single RN in the queue has been offered a job by a US employer.

There is no debate that these RNs are needed in the US, in spite of the current employment condition in the US. The predictions for US nursing supply over the next decade are disastrous.

The IT community recognizes a similar set of fundamentals in their industry. Recently, the Semiconductor Industry of America (SIA) and the Institute of Electrical and Electronics Engineers (IEEE) co-authored a letter to the ranking members of the Congressional Subcommittee on Immigration. The letter calls for sensible immigration reform, including reforming quotas to match the needs of all interested parties. One of the aims is to reduce the enormous visa wait times for green cards for qualified workers. These reforms will also help healthcare workers, such as RNs. The healthcare industry continues to work the issue as well.

Wexler to resign

Rep. Wexler (D-FL) is expected to resign his Congressional seat. He expected to leave Congress in order to work for a nonprofit whose aim is to promote peace in the Middle East.

Rep. Wexler is the primary sponsor of HR 2536, the Emergency Nursing Supply Relief Act. HR 2536 has failed to gain traction in Congress this term, garnering only 4 co-sponsors. Last term a similar bill had over 20 co-sponsors.

The news isn’t as dire as it might seem. The most likely positive scenario is that the ENSRA is folded into Comprehensive Immigration Reform. Senate Judiciary Immigration Subcommittee Chairman Charles Schumer (D-NY) had planned to introduce CIR legislation in September. He has since changed tact and wants to first get GOP support for a possible bipartisan bill. He is working behind the scenes to do so.

November 2009 Visa Bulletin

The November 2009 Visa Bulletin has been released. There have been some small changes from the October 2009 Visa Bulletin, but no major changes.

EB1: All Current
EB2: All Current, except China (01APR05) and India (22JAN05)
EB3: All 01JUN02, except India (22APR01).

The November Bulletin did contain this note:

E. EMPLOYMENT PREFERENCE VISA AVAILABILITY
The receipt of demand from Citizenship and Immigration Services Offices has far exceeded their earlier indications of cases eligible for immediate processing. As a result, it has been necessary to hold most of the Employment cut-off dates for November. At this time, it is not possible to provide any estimates regarding future cut-off date movements.

Three "Americans" win the Nobel Prize

Earlier today President Obama was awarded the Nobel Peace Prize. The award was a surprise; few pundits had tapped Obama for the honor.

Of lesser apparent newsworthiness, earlier in the week, three Americans shared the Nobel Prize in Medicine. Although none of the three are nurses or allied workers , two of the three Americans were immigrants to this country. Since this Blog focuses on the intersection of healthcare and visa policy, this is the story that I will highlight.

One of the winners, Dr. Blackburn, came to the United States in the 1970s because it was “notably attractive” as a place to do science. America is still a magnet for foreign scientists, she said, “but one shouldn’t take that for granted.”

There is a parallel to America’s current policy with respect to healthcare professionals, which presently is broken. While few immigrants, or Americans for that matter, make the kinds of these contributions that these two have made, thousands of foreign trained healthcare workers have made the kinds of day-to-day contributions that enormously enhance America. By enacting sensible healthcare visa reform, the US can insure that America remains a magnet for the best and brightest.

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CIR's chances improving

Last week, the New York Times reported that new USCIS Director Alejandro Mayorkas is preparing for Comprehensive Immigration Reform (CIR). The Director's preparations aren't wishcasting, but are directives from the President himself. The odds of CIR may increase if the President takes a personal interest in the issue.

For members of the healthcare industry, this is a welcome bit of news. Sen. Schumer's staff is said to be working on a CIR bill. The Senator has long been a friend of reasonable healthcare visa numbers. If CIR can gain momentum, there is a good chance that the long retrogression may be over.

What Sen. Grassley Should Not Do on the H-1B Visa

Last week Sen. Grassley continued his passionate cry against the H-1B program with a public letter to brand-new USCIS Director Mayorkas. Rather than furthering the discussion, his comments were loose with facts and do not survive serious analysis. His authority for the “substantial fraud” (his words) is weak.

Almost exactly one year ago, the USCIS produced the “H-1B Benefit Fraud & Compliance Report.” According to Sen. Grassley, the Report alleges that 20.7% of all visa cases reviewed were identified as having “outright fraud or other program violations associated with them.” The Senator’s use of the statistical ".7%" is unfortunate. This precision gives the Report a degree of credibility and meticulousness that it does not deserve. Even the Report itself rounded off to 21% in its conclusion. Similarly, the Senator’s use of the phrase “outright fraud” is exaggerated. “Fraud” is fraud; there is no such thing as “outright fraud”. His aim seems to be to incite.

The Senator’s letter purposefully attempts to confuse issues. In the above citation, note that the Senator says “…or other violations associated with them.” The Report purposefully mixed technical violations and fraud findings. This is akin to mixing drunken driving fatalities and parking tickets in a report on motor vehicle violations. The Senator should be above this kind of word-smithing.

The Senator also casually dismisses one of the Reports key findings: that Staffing Companies and IT Companies are not the types of organizations that are committing the fraud. Specifically, the Report’s fourth finding was that the fraud was more likely in fields such as “accounting, human resources, business analysts, sales and advertising.” Since this finding doesn’t fit Sen. Grassley’s theme, he ignores it.

The Report itself was so poorly researched as to be virtually worthless. The sample used in the Report was 51 cases, which is a statistically insignificant number in a world where at least 100,000 H-1Bs are filed in any given year.

In the year since the publication of the Report, none of the fraud implied in the Report has been acted upon. No arrests have been made and no convictions have occurred. All of the investigations including the much heralded Vision Systems indictments were independent of the Report. It is also worth noting that the government recently amended their indictment in that case, lowering the damages sought. This reduction in allegation received far less press than the initial story.

As I have argued in the past, H-1B fraud likely is overblown. Here is what I said in April,

In prior years we have seen more than twice as many H-1B cases accepted. These numbers provide compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers salaries. That argument just doesn’t jibe with what is actually happening.

If H-1B visa labor was being used primarily to lower US workers salaries, the H-1B filing numbers wouldn’t be impacted to any meaningful degree. Why? Because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less. This logic is straightforward and convincing.

The H-1B program surely has problems that legislation could cure. As an experienced Senator, Mr. Grassley knows that reasonable fixes to the H-1B program are attainable. Instead it appears as if the Senator is more interested in inciting a base level voter. The Senator’s aims would be better served by seeking out those organizations that are engaging in fraud, instead of broadly condemning the entire H-1B program. A good start would be to recognize the weak analysis in the "H-1B Benefit Fraud & Compliance Report”. When the Senator relies on the Report and plays politics with his language, his argument rings hollow.

Legislative Update for MDs

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

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

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

New USCIS Site

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

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

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

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

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

Fewer International Nurses Interested in the US

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

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

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

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

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

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

The Most Optimistic Scenario

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

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

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

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

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

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

October Visa Bulletin Released

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

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

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

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

FCCPT Type II Suspended

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

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

Must I Pay Unlicensed H-1B Workers?

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

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

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

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

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

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

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

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

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

AAIHR Annual Meeting

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

H-1B For Nurses

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

There are two key concepts:

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

MU has seen the most success in these scenarios:

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

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

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

Reform Minded?

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

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

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

The message is a simple one:

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

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

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