State of the Union

At 9 PM ET tonight, President Obama will make his annual report to the US public on the State of the Union. You can watch the State of the Union speech on YouTube. The State of the Union speech is often an opportunity for President’s to outline their agenda for the upcoming year. As the Financial Times says, “if ever Barack Obama needed to rise to the occasion it is now.”

The healthcare bill has stalled as a result of the surprise election of a Republican to the Senate seat long-held by Democrat Edward Kennedy. Other domestic bills – such as the long-wished for Comprehensive Immigration Bill – were being held back until the completion of the healthcare bill. It remains to be seen if the President and Democrat leadership will revive a smaller healthcare bill or just table the bill. This is one thing to look for in the State of the Union.

As second thing to look for are any references to CIR and how forcefully the President talks about immigration. The President’s Press Secretary hinted that CIR will be mentioned. It is beginning to look like the President will not drive CIR, but is willing to throw his weight behind it if Congress decides to take action.

CGFNS Expedites

CGFNS recently updated their standards for expedites of CGFNS documentation, including the Visa Screen. The new process allows applicants Expedited Review Service only if:

• they have met the criteria of Section 343 of the Illegal Immigration Reform Immigrant Responsibility Act
• all required documents have been received by CGFNS and
• they supply CGFNS with a copy of their Request for Evidence, deportation deadline or offer for employment accompanied by a completed CGFNS Expedited Review Service form

H-1B Strategic Planning Teleconference

The USCIS has just released a comprehensive Memo aimed specifically at H-1B users who place employees at third-party job sites, such as many IT and healthcare staffing companies. The nineteen page Memo, which is available at the link below, clarifies whether an H-1B Petition will be approved or denied in instances where an employee is expected to work at a third-party worksite.

The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary’s work. The Memo lists eleven factors that will be considered.
The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):

H-1B WILL BE APPROVED:
- Traditional employment where the employee occasionally visits off-site clients.
- Long-Term Off-Site Employment where the Beneficiary reports to Petitioner’s staff and not to third-party clients’ staff.
- Long-Term Off-Site Employment where the Beneficiary using the Petitioner’s proprietary software/processes.

H-1B WILL NOT BE APPROVED:
- Self-Employed Beneficiary.
- Independent Contractors.
- “Job-Shop” where the Petitioner places H-1B employee at third-party off-site clients and the Petitioner exercises no control over the Beneficiary’s work.

Characteristics of the "job shop" are:
o Petitioner has contracts with many companies in which it supplies staff to these companies.
o These contracts do not list specific positions, but are staffed on an “as-needed” basis.
o Beneficiary is working in a “core position”. An example of a “core position” is working on a client’s payroll software.
o Beneficiary reports to a manager who is an employee of the third-party company.
o The Beneficiary’s work assignments are determined by the third-party company.
o No proprietary information is used.
o The Beneficiary’s progress reviews are completed by the third-party company.

The key piece of evidence in the H-1B petitions is going to be your company’s contracts with your end-clients. If you use standard contracts with your clients, please send them to your MU attorney so that we can review these contracts.

MU will be hosting a free teleconference with all clients on Tuesday January 26 at 3PM ET / 12 Noon PT. On the teleconference we will discuss how the Memo will impact staffing companies.

In addition, we will discuss preparing for the H-1B cap season, and so all clients of MU who use the H-1B visa are encouraged to dial-in. If you would like to participate on the call, please send an email to Mary. Mary will send in the dial-in information to you a few days before the call.

Sentosa Care Case Re-Emerges

In 2006, eleven Philippine nurses employed at a Suffolk County, Long Island nursing home walked off their positions because of alleged bad working conditions. This mass resignation set off a chain of lawsuits that appeared to end in January 2009. A January 8, 2010 Associated Press report says that the nurses have now filed a federal civil rights lawsuit against their nursing home employer and the Suffolk County District Attorney’s office.

Shortly after the walkout, the Suffolk County District Attorney indicted the nurses alleging that the mass resignation endangered some of the patients at the Avalon Gardens Rehabilitation and Health Care Center. A New York State appellate court eventually ruled that the resignations were lawful and ordered Suffolk County to stop prosecution. The appellate court also ruled that Suffolk County could not indict the nurses’ attorney who had advised the nurses to quit.

Emboldened by their wins in the US court system, the nurses fought back and filed complaints against their Philippine recruiter, Sentosacare. This time, the nurses lost their cases, which had been filed with the Philippine Overseas Employment Agency (POEA) and the National Labor Relations Commission (NLRC). Hearings were heard in the Philippine congress.

After losing in the Philippines, the nurses took their action to America and sued Sentosacare. In early 2008, that case too was dismissed. That dismissal cited a lack of evidence.

A nursing home attorney and the Suffolk County District Attorney didn't immediately comment about the most recent federal civil rights lawsuit.

Visa Bulletin Starts to Slowly Move

The January 2010 Visa Bulletin (released in mid-December 2009) contained information that explained the methodology behind the DOS’ VB. Going further, the DOS predicted expected progression of VB dates throughout Fiscal Year 2010. That process appears to be starting with the just-released February 2010 VB. Fiscal Year 2010 runs from October 1, 2009 through September 30, 2010.

The VB dates in February will be:

EB1: all current
EB2: all current, except China (22May05) and India (22Jan05)

EB3: all 22SEPT02, except India (22Jun01) and Mexico (22Jul02)

The EB2 category had a slight movement in China, none in India. This is consistent with the January 2010 VB. The EB3 category had 6 week improvement in all categories, except India and Mexico. These progressions are less than one might have expected, but not so much so that there should be any cause for doubting the earlier DOS projections.

The January VB projections for EOY FY-2010 cut-off dates were:

EB2:
China: July - October 2005
India: February - early March 2005

EB3:
Worldwide: April - August 2005
China: June - September 2003
India: January - February 2002
Mexico: January - June 2004
Philippines: April - August 2005

The Next Decade's Jobs

Where are the next decade’s American jobs? The answer is undoubtedly healthcare. Four of the next decade’s top 10 occupations with the largest growth are in health care, according to a Bureau of Labor Statistics study reported by National Public Radio.

Leading the pack is Registered Nursing. The US economy expects to demand over a half million RNs (22%) in the next ten years, at an average salary over $60,000 per year. Immigration traditionally has been used to fill obvious US supply shortages. Americans opinions on immigration differ, but after looking at the objective employment numbers, liberalized immigration for healthcare workers ought to be something everyone can agree on.

CHC Healthcare votes as a condition for CIR?

In his first year, President Obama's most significant domestic agenda item has been the development and enactment of a Healthcare bill. The Healthcare bill, which was first floated in the summer, has been plagued by delays and Congressional holdouts. Recently, it has begun to take shape and both houses of Congress have readied their bills. Many pundits expect that the Healthcare bill will be passed and signed by President Obama in the next month or so.

There are a few hurdles before enactment. Each chamber of the US legislative branch -- the Senate and House – have different versions of the Healthcare bill. US law says that the discrepancies have to be remedied through a process called Conference. The Conference committee ordinarily consists of leaders in the Senate and House. These leaders hammer out a compromise bill and then offer the remedied bill to their respective chambers.

Each chamber of Congress then brings the compromise bill up for a vote. Ordinarily, the vote is a formality since each party and each chambers’ leadership teams obtain approval from all concerned in advance of the vote.

This series of give and take negotiations provides an opportunity for certain politicians. A January 4, 2010 report published on Talking Points Memo says that the Congressional Hispanic Caucus (CHC) is conditioning their support for the Healthcare bill. The condition is that the White House takes up CIR this year.

Rep. Gutierrez, who introduced CIR ASAP in December, heads the CHC. His CIR ASAP contains many measures that are friendly to the immigration of healthcare professionals.