H-1 Update and a note

The USCIS’ latest H-1B count update shows that as of July 10, 2009, approximately 44,900 H-1B cap-subject petitions had been filed. In mid-May the USCIS reported that approximately 45,000 H-1B cap-subject petitions had been filed. A recent article in the IT trade journal Computerworld explains that the retreat in H-1B numbers is due to the fact that USCIS is actually denying more cases than they are receiving. Anecdotal reports are that immigration attorneys are seeing many more denials than in years past.

For the healthcare occupations this may be a good sign. Physical and Occupational Therapy positions are being approved without much incident, now that the Masters Degree issue has been resolved. The USCIS seems to be willing to accept the argument that certain nursing positions are eligible for H-1B visas as well, provided that the proffered positions are normally ones for which bachelor degrees are required.

Note- Our MU email server is having some problems. We should have it resolved in the next few days. If you have emailed me and I haven’t responded, odds are that I did not receive it. Once the email is fixed, you should re-send the email.

Guidance on PT/OT Masters denied cases

The USCIS has just released a Guidance Memorandum for those Physical Therapists and Occupational Therapists who had their H-1B petitions denied this spring before the issuance of the Velarde Guidance Memorandum. Those cases that were denied solely because ether H-1B worker did not have a Masters degrees should send an email to the Service Center that issued the denial. Special email addresses have been created to handle these cases:

California Service Center: csc-ncsc-followup@dhs.gov

Vermont Service Center: vsc.ncscfollowup@dhs.gov

The email should explain how the particular case meets the standards set forth in the Velarde Guidance Memorandum.

See also my July 7 post on this issue.

August VB released

The Department of State has released the August Visa Bulletin. The Visa Bulletin is the listing of processing dates for immigrant visas (Green cards). As expected there are no changes in the August Bulletin, as all visas has been exhausted for the usual categories (EB3) for RNs, PTs, OTs and other allied positions.

The EB2 category remains “current” for natives of most countries. Cases filed under EB2 are eligible for immediate processing and should expect approval in the near future. The two major EB2 exceptions are China and India. Chinese and Indian cases are only being processed for those with priority dates before October 1, 2003.

The September Visa Bulletin will be released in mid-August. The September VB will likely have the same dates as the August Visa Bulletin, at least with respect to the categories discussed in this post.

The next major Visa Bulletin will be the October VB, which should be published in mid-September. The US fiscal year runs from October 1 – September 30, and so the 2010 US fiscal year begins October 1, 2009. Preliminary expectations are that the DOS will start the dates off slowly, and then progress them in a systematic process throughout the year. My sense is that the EB3 dates will be in the 2003-05 time frame. Depending on demand in October and November, I could see those dates aggressively moving ahead.

Predicting the progression of Visa Bulletin dates is a somewhat impossible exercise. No one knows just how many 2003-05 visas remain unused, and no one knows how many of those people no longer want their visas.

Masters PT / OT H-1B Update

Back in the spring, the USCIS routinely was denying PT and OT H-1B cases in instances in which the PT /OT did not hold a Masters Degree. This was wrong. Many clients filed appeals to the Administrative Appeals Office (AAO). Eventually, several staffing and recruiting clients bandied together and filed a lawsuit against the USCIS. Cindy and I were pleased to take a leading role in the direction of that lawsuit.

In direct response to the lawsuit, USCIS’ Service Center Operations Officer Barbara Velarde issued a May 22, 2009 Guidance Memorandum clarifying the point that there was no Masters Degree rule. Instead, the Guidance directs all USCIS officers to approve all H-1B cases for PT/OTs as long as the worker holds a license in the state of intended employment.

Since that time all of MU’s post-May 22 cases have been approved, save one unusual case. We are working directly with the California Service to have that one case overturned.

At the AILA Annual Convention, the USCIS said that there would be a forthcoming Guidance explaining how to overturn previously denied H-1B cases. None has been published. That having been said, we have begun to see the USCIS, on its own volition, take some action. This week we received our first AAO approval; the case appears to have never actually been sent to the AAO, it was just approved by the California Service Center (CSC).

I’ve also seen a communication in which the CSC confirmed to a House of Representatives’ staffer, that “the California Service Center will commit to an answer in 30 to 60 days.” Hopefully, we all can put an end to this unfortunate tale in the near future.

Following the Blog

There are several ways to follow the posts on this Blog.

1. Read me on ILW.com. As I have done for the past three and a half years, I expect to post 2-3 times a week with updates targeted to Healthcare Immigration, focusing on RNs, PTs, OTs, SLPs, and other allied occupations.

2. Visit the mirror site at www.musillo.com

3. Get an email subscription of the Blog. To do so, input your email id on the right hand column at www.musillo.com

4. I'm now Tweeting! Follow me on Twitter @ChrisMusillo.

Welcome to MusilloUnkenholt LLC

I am pleased to announce the launch of MusilloUnkenholt Immigration Law! Cindy Unkenholt and I combine decades of experience with a sincere passion for immigration law. I wanted to take a moment to express our gratitude that you have followed all of my Blog postings over the years. I will no longer be posting to the previous Blog site. I would also like to thank Sam and the ILW.com for their continued production of this Blog, which focuses its postings on the intersection of nursing, allied healthcare and immigration.

Cindy and I are pleased that we're being joined by our dedicated and knowledgeable staff. The partners and staff of MusilloUnkenholt believe that the practice of immigration law is unlike any other!

My new contact information is:

Christopher T. Musillo, Esq.
MusilloUnkenholt LLC
3400 Carew Tower
441 Vine Street
Cincinnati, OH 45202

c.musillo@muimmigration.com
voice: 513.744.4080
main voice: 513.381.8472
fax: 513.322.0045