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.

FSBPT and State Action

by Chris Musillo and Cindy Unkenholt

As readers of the MU Healthcare Immigration Law Blog surely are aware, the FSBPT recently enacted a policy that bars graduates of Philippine, Egyptian, Indian, and Pakistani schools from sitting for and taking the National Physical Exam until 2011. This policy was enacted in July 12, 2010 and was formulated after analysis by the NPTE uncovered replication of actual test questions.

Ultimately the FSBPT is beholden to its stakeholders, the 50 State Boards of Physical Therapy. One such State Board, California, has just sent the FSBPT a strongly-worded letter, which sets an October 1 deadline for the FSBPT to rescind their discriminatory policy or suspend the NPTE for all test-takers. A copy of this letter is available on the MU website.

At the FSBPT's annual meeting in late October, it will more fully outline its plans for the future of the NPTE to their membership and to their stakeholders. This dialogue has already begun and may result in an amended policy in advance of the annual meeting.

The FSBPT's aims are valid. Test takers who cheat should be penalized before sitting for NPTE. In some instances, the penalty should be an outright prohibition against taking the exam.

While the FSBPT's aim is valid, their remedy is imperfect. MU lawyers Chris Musillo and Cindy Unkenholt have been working with employers, recruiters, physical therapists, immigration lawyers, and other industry leaders with the goal of remedying or modifying the policy, which we believe violates both federal and state discrimination laws.

In order to make sure that your State Board is part of this dialog, please urge your State Board to make their opinion known to the FSBPT.

AAIHR Annual Meeting

The AAIHR is holding its Annual Meeting of Members September 20, 2009 in Chicago, IL. MU's Chris Musillo and Cindy Unkenholt will be attending. The AAIHR is the industry's premier advocacy organization. Staffing companies and recruiters are invited to join via the AAIHR’s webpage.

MU and PNAA

In June, MU co-sponsored the Philipine Nurses Association of America's 5K fun run at their Annual Convention. We were pleased to work with such an excellent organization. Visit our Facebook page for more photos of this event.

October 2010 Visa Bulletin

The Department of State has just released the October 2010 Visa Bulletin, which is the first 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 (22 MAY 06) and India (08 MAY 06)
EB-3 – all 08 JAN 05, except China (08 NOV 03), India (15 JAN 02), and Mexico (22 APR 01)

NVC launches electronic processing

The National Visa Center is the clearinghouse for Consular Processed Immigrant Visa petitions. The NVC’s purpose is to collect the I-140 approval notice and other biographical information and relay these items to the Consulate of choice. The NVC also collects the NVC fee, which is presently $720 per applicant.

Last year, the NVC rolled out an on-line electronic payment system. MU has used this system. Our experience is that it has been a very efficient system. We like the speed and accuracy of the system.

Now the NVC is launching their on-line documentation and communication system. This program uses e-mail for communication and submission of all forms and documents to the NVC using the Portable Document Format (PDF).

Applicants who are applying for a visa at the U.S. Embassy in Ashgabat, Turkmenistan are required to process electronically.

Applicants who are applying for a visa at the U.S. Consulate General in Ciudad Juarez, Mexico in the following visa categories are required to process electronically if the first three letters of their NVC Case Number are MEP:

CR1 Conditional Spouse of United States Citizen
CR2 Conditional Child of United States Citizen
IR1 Spouse of United States Citizen
IR2 Child of United States Citizen

The option to participate is initially limited to visa applicants who are applying for a visa at the U.S. Embassies in Guangzhou, China and Montreal, Canada.

If the pilot program is successful, it is expected that the program will expand to other Consulates and Embassies.

FSBPT's odd policies continue to baffle

Yesterday, the FSBPT announced on their webpage that any post- July 11 NPTE test-takers would have their results held until at least October 1, 2010, if they graduated from a school in the Philippines, India, Egypt or Pakistan. The scores are being held pending a psychometric review of each test-takers’ results. Certain post-July 11 test takers should expect to have their scores invalidated; while others’ test results will be allowed to stand.

As has been consistently the case since the July 12 announcement, the FSBPT has been vague and inconsistent in their message. This vagueness and inconsistency calls into question the FSBPT’s ability to manage this situation.

With this latest webpage notice, the FSBPT has not explained what it looks for when it performs the psychometric review. More oddly, test takers whose scores have been invalidated may still be eligible to take the NPTE-YRLY in 2011 if they continue to meet their states’ eligibility requirements. This goes against the purpose of a review, which is presumably to protect the US public from cheating test takers.

Is the FSBPT’s Policy impacting you?

Have you been impacted by the FSBPT’s discriminatory policy against Philippine, Indian, Egyptian, and Pakistani graduates? If so, please contact Chris Musillo or Cindy Unkenholt. We are working with like-minded immigration attorneys, recruiters, staffing companies, and other stakeholders with a goal of solving this crisis.

We presently are limiting our scope only to those who hold US immigration status – US citizens, US Legal Permanent Residents, and valid nonimmigrant visa holders (for example H-4 or F-1). You should also have filed a state license application or have the necessary criteria to file the state license application. Again, if you fit this profile, please contact either one of us.

H-1B News -- Filing Fee Increase, Neufeld Memo

August 2010 is shaping up to be one of the toughest months for H-1B employers. In the last few days, we have a seen a targeted H-1B filing fee increase and the dismissal of a lawsuit that sought to overturn the Neufeld Memorandum.

Fraud Fee Increase

Late last week, the House and Senate quickly passed a massive H-1B and L-1 filing fee increase. The increase was instantly signed by the President.

Effectively immediately, H-1B and L-1 employers with more than 50 employees and who have workforces with 50% H-1B or L-1 workers, will see an increased fraud fee on new petitions. Previously, the fraud fee was $500. The new L-1 fraud fee will be $2,750 and the new H-1B fraud fee will be $2,500.

New petitions are a Beneficiary’s first L-1 or H-1B visa for a Petitioner. Typically, new Petitions are when the Beneficiary is (i) a new hire from overseas or from another nonimmigrant visa status, (ii) a student ending their OPT, or (iii) an L-1 or H-1B transfer from another L-1 or H-1B employer.
The fraud fee does not apply to employees’ L-1 or H-1B extensions since these are not "new" filings.

Neufeld Memo Lawsuit Dismissed

Earlier this summer a consortium of recruiting and staffing companies sued the USCIS, contending that the Neufeld Memorandum was contrary to law. On Friday, a federal Judge dismissed the case. The Judge's opinion says that the Neufeld Memorandum is legally permissible because the Memorandum is simply “guidance” and not binding on USCIS officers. The Plaintiffs had hoped that the federal Judge would force the USCIS to withdraw the Neufeld Memorandum.

The Neufeld Memorandum limits approvals of H-1Bs where the Beneficiary is employed at a third-party worksite. In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not “employers”.

The Memorandum derisively referred to the IT staffing model as a “job shop”. USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.

MU has seen much stricter evaluations in third-party worksite situations. Although we have not seen a material rise in denials, we have seen more RFEs issued in many H-1B cases where the employee is set to work at a third-party worksite.

September Visa Bulletin

The Department of State has just released the September 2010 Visa Bulletin. Again, there has been a notable promotion of priority dates.

The relevant dates are:

EB-1 – all current
EB-2 – all current, except China (08 MAR 06) and India (08 MAY 06)
EB-3 – all 15 DEC 04, except China (22 OCT 03), India (01 JAN 02), and Mexico (U)

Notes on specific countries:

China: China EB2 improved by two months since the August Visa Bulletin. China EB3 remained the same.

India: India EB2 improved by two months. There was excellent progress in India EB2, which has now jumped 15 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 however did not move from the August 2010 Visa Bulletin.

Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months. It may move to 2005 in October.

H-1 Cap Update: 27,300 used

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.

The US government can issue 65,000 cap-subject H-1Bs in any given year. An additional cap of 20,000 H-1Bs is set aside of graduates of US Masters Degrees programs (or greater programs, including Ph. Ds). For the middle part of this decade, the H-1B cap was fully subscribed on the first day that Petitions were allowed to be filed, April 1.

This year has seen the smallest number of H-1B Petitions in many years. Through the end of July, just 27,300 cap-subject H-1Bs have been approved and 11,600 cap-subject Masters H-1Bs. Last year, we saw almost twice as many H-1Bs at this time and last year’s cap-subject H-1B cap lasted until mid-December. This year’s numbers indicate that the cap-subject H-1B quota should be available until at least early 2011.

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.

With the economic conditions of the last two years, H-1B usage has slowed dramatically. As I have argued in the past, less H-1B usage in a shrinking economy is evidence of the lack of fraud in the H-1B program.

Combating the FSBPT’s Discrimination Policy

As we have previously posted, the FSBPT's July 12 policy barred graduates from universities in the Philippines, India, Egypt and Pakistan from sitting for the NPTE. Under the FSBPT’s current policy, graduates from those four countries will be given their own separate but equal exam starting in the Fall of 2011.

MU knows that several states have begun contacting the FSBPT to inquire if the FSBPT can speed up this process or rescind it. Some states may act in the next few days.

Once the letter is issued, it will be incumbent on the FSBPT to reconsider alternatives to their separate but equal approach or run the risk of legal action. MU is also aware of several different parties and states that are consulting with attorneys to evaluate their legal options. Legal action is the least –desired course of action. If you have been denied an opportunity to take the NPTE and you are in the US and would like to help remedy the FSBPT’s policy, please contact Cindy Unkenholt or Chris Musillo.

California Dreaming

On July 28, the California Board of Physical Therapy will hold its Quarterly Board Meeting in Sacramento, California. The agenda includes a Board discussion on the Actions Taken By the Federation of State Boards of Physical Therapy (FSBPT) to Suspend Testing for NPTE Exam Candidates from Specific Countries.

The Meeting is open to the public. If you are in or around the Sacramento area, you should attend. If you do not attend, you should send an email to the Board explaining your position.

If California is not convenient for you, perhaps New Jersey is. New Jersey’s Board of Physical Therapy meets today. If not New Jersey, then which state’s Board meeting can you attend to make your position known?

I am in the process of gathering dates for all major states. Here is the list that I have so far:

New Jersey – July 27, 2010
Arizona – July 27, 2010
California – July 28, 2010
Florida – August 5, 2010
Maryland – August 17, 2010
Illinois – October 2010

If you need model letter and/or talking points to help you frame your communications, please email me or Cindy. Also, if you know of other state’s Board meeting dates, please let us know by commenting or emailing.

Philippine Ambassador weighs in

Willy C. Gaa, the Philippine Ambassador to the United States has written a strong letter to FSBPT Director William Hatherill condemning the FSBPT’s recent testing ban on Philippine, India, Egyptian, and Pakistani graduates. In the letter Ambassador Gaa said that the testing ban was “arbitrary” and “a blanket indictment” on the credibility of all Philippine Physical Therapists. He calls for the FSBPT to revoke the testing ban and to work with the Philippine government to address the problem of review center abuses.

Ambassador Gaa outlined efforts that the Philippine legislature has taken to ensure the integrity of standardized tests, including a fast-track bill to give broader authority to the Philippine Commission on Higher Education (CHED) to regulate review centers.

FSBPT "reaffirms" its decision

A recent posting on the FSBPT website says that the FSBPT Board has “reaffirmed its prior decision” to suspend graduates of PT programs in the Philippines, India, Pakistan and Egypt. The website posting does not indicate why the decision was revisited, what criteria went into the decision, and whether the Board seriously considered revoking its prior decision.

The posting does indicate that the FSBPT Board is directing its staff to quickly produce the FSBPT-YRLY, although it does not expect that the FSBPT-YRLY will be available earlier than the “latter part of 2011”.

Federation Discrimination?

As was mentioned in the Monday posting, the Federation of State Boards of Physical Therapy immediately has barred graduates of Physical Therapy university programs in the Philippines, India, Egypt and Pakistan from taking the U.S. National Physical Therapy Exam. Since our post on Monday more news has come out:

- The ban impacts anyone who has received their first professional degree from a school in the four named countries. For example, an applicant presently in a United States Masters PT program would be barred from taking the NPTE if s/he previously received a degree from a Philippine university.

- The Federation has been involved in a lawsuit in the Philippines for several years. The lawsuit is based upon past incidents of alleged cheating.

- The “cheating” appears to be allegations of tests-takers memorizing questions and then regurgitating the questions to other students.

- There does not appear to be any allegation that any universities in the four countries engaged in any malfeasance. The cheating allegations are limited to certain test takers and certain review centers.

- More countries may be added to the banned list.

While the Federation needs to preserve the integrity of the test, the Federation’s remedy is overbroad and perhaps illegal. US law does not allow discrimination on the basis of national origin. US law also assures all of due process and equal protection.

The Federation will likely argue that their approach – banning graduates of Universities in the Philippines, India, Egypt and Pakistan -- is not a ban on nationals of those countries. This appears to be a distinction without a difference. The vast majority of university graduates are nationals of the country where the university is located.

MU has been working with industry leaders to craft a reply and a response to the Federation. We ask that Therapists and employers of Therapists contact their State Board of Physical Therapy to protest the Federation’s actions. If the State Boards hear from enough people, they may prompt the Federation to change their approach. Please take a minute to contact your State Board.

August Visa Bulletin released

The Department of State has just released the August 2010 Visa Bulletin. There has been a significant promotion of priority dates.

The relevant dates are:

EB-1 – all current
EB-2 – all current, except China (01 MAR 06) and India (01 MAR 06)
EB-3 – all 01 JUN 04, except China (22 SEP 03), India (01 JAN 02), and Mexico (U)

Notes on specific countries:

China: China EB2 improved almost four months since the July Visa Bulletin. China EB3 unfortunately is now separate from the EB3 All Chargeability.

India: India has made significant progressions in the last two months. There was excellent progress in India EB2, which has now jumped 13 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 is now in 2002 for the first time.

Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months.

FSBPT Suspends NPTE Examination for Graduates of Overseas Programs

In a stunning development, the Federation of State Boards of Physical Therapy (FSBPT) today announced that it immediately has suspended National Physical Therapy Examination (NPTE) testing for all graduates of schools located in Egypt, India, Pakistan and the Philippines. India and the Philippines are, by far, the two largest suppliers of foreign-trained Physical Therapists. Graduates from schools in these countries will not be allowed to sit for US examinations for at least one year and probably longer.

The new exam, which is just for the foreign-trained, is to be called the NPTE-YRLY. FSBPT expects to launch the NPTE-YRLY in the fall of 2011. The FSBPT intends to offer the NPTE-YRLY only once per year, at select test sites to be identified at a later date.

The FSBPT website says that this action is a result of “ongoing security breaches by significant numbers of graduates of physical therapy schools from certain foreign countries.” Two years ago, the FSBPT eliminated the exam from being offered overseas. Today’s action disallows the exam from being offered in the United States as well.

FSBPT’s actions are the result of “compelling” evidence that reflects “systematic and methodical sharing and distribution of recalled questions by significant numbers of graduates of programs in the affected countries, as well as several exam preparation companies specifically targeted to these graduates.” FSBPT’s website says several exam preparation companies engaged in a variety of illegal actions, including widespread sharing of hundreds of live test items.
MU will pass along more news as we receive it.

2010-11 OES Wages Have Been Released

On July 1 of every year the US Department of Labor’s Foreign Labor Certification Data Center is updated to reflect the 2010-11 USDOL Prevailing Wages (PW). These PWs generally increase and can impact future Green Card Applications and H-1B Petitions.

Correct application of the PW rules is critical in the H-1B process. Among other wage rules, H-1B Beneficiaries may not be paid less than the Prevailing Wage. There is no affirmative duty to raise an existing H-1B workers’ wage unless an amendment or extension to the H-1B is filed. H-1Bs are the visa of choice for many healthcare occupations including, Physicians, Physical Therapists, Occupational Therapists, Speech Language Pathologists, some nursing roles, and many other allied occupations.

For green card cases, employers should make sure that their postings and advertising processes reflect these increased wages, unless a PWD is already in place. Failure to account for the increased Prevailing Wages could prove fatal to some green card cases.

CGFNS encourages on-line filings

CGFNS recently announced that paper Applications will incur an additional $75 charge. In order to avoid the charge, applicants are encouraged to file their Applications on-line at CGFNS Connect.

CGFNS is one of the major credentials evaluators for internationally-educated students. Their credentials evaluation services include registration and licensure of nurses and other health care professionals, such as Physical and Occupational Therapists.

Perhaps their best-known service is the Visa Screen, which is the CGFNS-branded Healthcare Worker Certificate. US immigration law mandates that all Applicants for nonimmigrant and immigrant visas obtain a Healthcare Worker Certificate prior to entering the US.

Several private companies are approved to issue the HWC, although most are limited by occupation. For instance, FCCPT issues HWCs for Physical Therapists; NBCOT issues HWCs for Occupational Therapists. CGFNS issues HWCs for all seven relevant occupations:

• Licensed practical nurse, licensed vocational nurse, or registered nurse
• Occupational therapist
• Physical therapist
• Speech language pathologist and audiologist
• Medical technologist (clinical laboratory scientist)
• Physician assistant
• Medical technician (clinical laboratory technician)