CES On-Line Only Starting March 1

Earlier this month, CGFNS launched their on-line CES reporting system. Starting on March 1, 2010, CES paper reports will no longer be mailed. Each individual report will be available for one year, after which it will no longer be available

On-line reporting will not be available to applicants who were issued a report before February 2, 2010. Applicants who are issued a report between February 2 and March 1 will receive a paper copy of the report in the mail and also be able to view and download their report online.

USCIS Neufeld Teleconference

The USCIS held a February 18 teleconference aimed at addressing the myriad of questions and rumors that have surfaced since the publication of the Neufeld Memorandum a few weeks ago. The Neufeld Memo purports to clarify USCIS policy on the legality of H-1B workers who are placed at third-party worksites. Several times on the call USCIS officials reiterated that the Memo is not new law, but merely an explanation of their current interpretation of law.

The attendees would have none of it. Dozens of immigration attorneys, including MU’s Chris Musillo spoke on the teleconference. A litany of criticisms was hurled at USCIS. Members of AILA and other industry trade groups also spoke up on the teleconference and condemned the Memo. The criticisms ranged from the surreptitious nature of the development of the Memorandum, to the absence of legal due process, to the unintended consequences in related areas of law, such as DOS immigration officials at airports misapplying this DHS Memorandum.

The loudest disapproval was directed at the underlying law supporting the Memorandum. MU contends – and many other immigration attorneys – that the Memorandum is simply not adequately grounded in law. For that reason many called on the USCIS to withdraw the Memorandum.

In the Memorandum, the USCIS found that existing law does not define “employer-employee” relationship. But this is wrong. Existing law does define an “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. The Neufeld Memorandum pays lip-service to these five factors and attempts to distinguish the “right to control” characteristic as a superior characteristic.

MU recently has had several H-1B's approved in spite of the Memorandum. That having been said, MU recently has seen a new “stock” RFE on a few of our client’s cases. At this point, it is unclear how USCIS officials will analyze H-1B third-party worksites in light of this new “stock” RFE and the Memorandum.

On the teleconference, USCIS announced that there would be a second teleconference. The date of the teleconference is not set at this time, but it is expected that the call will take place in early March.

PTs qualifying under the EB-2 Green Card

For many non-Indian and non-Chinese natives, the EB-2 Permanent Residency visa (green card) provides an fast and cost-effective alternative to the H-1B process. MU has successfully applied for the EB-2 for many Physical Therapists who have five years of progressive experience in occupation after the attainment of their Bachelors degree.

We now believe that we have a successful strategy for Physical Therapists who hold an FCCPT “first professional degree” evaluation, even if the Physical Therapist does not have five years of post-Bachelors degree progressive experience. If you are interested in having an MU attorney review your matter for applicability as an EB-2 Permanent Residency green card, please contact Chris Musillo or Cindy Unkenholt.

Schumer’s Future and the Senate Leadership Curse

In the recent past there has been no surer way to ingloriously leave the Senate than to be named leader of your party’s Senate delegation. This recent fate may soon fell Democrat and Majority Leader Sen. Harry Reid of Nevada. As Sen. Reid’s re-election chances continue to dim, Sen. Chuck Schumer's (D-NY) jockeying for the position could be the final nail in the coffin for CIR in 2010.

Since becoming Majority Leader, Sen. Reid has been under constant attack in his home state. Several Republicans have lined up to face Sen. Reid. The polls suggest that the race is a toss-up and the trend lines point to a Reid loss.

Some are beginning to point to Sen. Schumer as a likely candidate to succeed Sen. Reid as Democrat Senate Leader. In order for CIR to pass, it will need the leadership of someone who is not worried about his or her political future since immigration is too hot-button an issue for someone who is concerned about their future. If Sen. Schumer decides that the Majority leadership is in his future, he would be unwise to stump for immigration reform until he secures the leadership position.

If does secure the Democratic leadership, Sen. Schumer may decide to revisit CIR at a point in time when passage looks better – i.e. when national unemployment is not around 10 percent and Democrats do not look to be hemorrhaging seats in both the Senate and House. In the meantime, targeted immigration reform may be the play for politicians interested in specific issues, such as liberalized healthcare immigration.

For Sen. Schumer to seek CIR while surreptitiously stumping for the Senate Democratic Leadership position would be carelessly risky and tell us that Sen. Schumer has not learned about the Senate Leadership Curse that has felled many recent Leaders.

Sen. Reid’s predecessor, Sen. Tom Daschle (D-SD) came under the spell of the Curse. Sen. Daschle was often pegged as the “Chief Obstructionist” by Republicans. South Dakota voters bought into the meme and refused to re-appoint him to the Senate in 2004.

The Senate Leadership Curse is not limited to Democrats. Trent Lott (R-MS) was forced out of the Republican Leadership position in 2003 after some inflammatory and arguably racist comments surfaced. Sen. Lott would unceremonious resign his Senatorial seat in 2007.

Sen. Lott was succeeded by Sen. Bill Frist (R-TN) as GOP Senate Leader. Sen. Frist took a few questionable positions on right-to-life issues and eventually would announce that he was resigning his majority position and leaving the Senate.

With Lott’s exit, the Republican leadership was handed off to Sen. Mitch McConnell (R-KY), who is the current Republican Senate Leader. Under McConnell’s stewardship, the Republicans lost many seats in 2008, leading some to question McConnell’s ability to head the Senate Republicans. In Sen. McConnell’s home state, libertarian Rand Paul is raising impressive amounts of money in his bid to win the open 2009 Senate seat being vacated by fellow Republican Jim Bunning. Mr. Paul is not the Republican Party’s “establishment” candidate. If Mr. Paul is successful it will signal that rank-and-file Republicans are unsatisfied with the current national Republican leadership.

While Sen. McConnell’s leadership is being questioned, his feet are on sounder ground than Sen. Reid’s. With polling numbers continuing to spell doom for Sen. Reid’s re-election, Sen. Schumer’s chances for the Majority position look brighter.

If Sen. Schumer is elected Majority Leader, he will want to avoid the Senate Leadership Curse. However since Sen. Schumer’s 2010 re-election is thought to be a forgone conclusion, he will not have to defend his record until 2016. With a six year cushion before re-election, Sen. Schumer may be the ideal Senator to champion immigration reform, but in 2011.

Neufeld Memo: First H-1B Cases Approved

MU is pleased to report that it has received our first H-1B decisions under the Neufeld Memorandum. All of these first cases have been approved. Approvals have been received from both H-1B Service Centers. All of these H-1B cases were either filed or received RFEs after the January 8, 2010 publication of the Neufeld Memorandum.

In all instances, H-1B employers placed employees at third-party worksites. MU argued that the employer retained legal authority to hire, pay, fire, supervise or otherwise control. We used a variety of approaches in these first cases tailoring our approach to the facts at hand. We have received approvals for cases involving IT professionals and healthcare workers.

It is important to note that these approvals do not mean that the application of post-Neufeld Memorandum cases is settled. Under the Neufeld Memorandum, USCIS may seek additional evidence about the employer-employee relationship in instances where the employee works at a third-party site. USCIS may be delaying application of the Memorandum for some later point in time. Or, these first few cases may have simply not received stricter scrutiny. Nonetheless these first few cases indicate that H-1B cases can receive approval even if the employee is employed at a third-party worksite.

March 2010 Visa Bulletin

The Department of State was a little ahead of the game. It has just released the March 2010 Visa Bulletin. The relevant dates are:

EB1 – all current
EB2 – all current, except China (8 JUL 05) and India (1 FEB 05)
EB3 – all 15 DEC 02, except India (01 JUL 01) and Mexico (01 JUL 02)

Changes since February 2010 Visa Bulletin:
EB1 – none
EB2 – slight progress: China (about 6 weeks); India (about one week)
EB3 – notable progress for All Others (about 3 months); slight progress for India (about one week); no progress for Mexico.

Back in December 2009, the DOS predicted best case scenarios where the cut-off dates would be in the summer 2010.

Those predictions were (with MU comments on the likelihood of meeting this prediction):

EB2:
China: July through October 2005 (good prediction – July 05 already)
India: February through early March 2005 (good prediction – Feb 05 already)

EB3:
Worldwide: April through August 2005 (much progress must be made)
China: June through September 2003 (seems reachable)
India: January through February 2002 (seems reachable)
Mexico: January through June 2004 (modest progress is necessary)
Philippines: April through August 2005 (much progress must be made)

New NCLEX Standards

The National Council of State Boards of Nursing, Inc. (NCSBN) will raise the passing standard for the NCLEX-RN Examination (the National Council Licensure Examination for Registered Nurses), effective April 1, 2010. The new passing standard is -0.16 logits, which is 0.05 logits higher than the previous standard of -0.21. The methodology behind the decision-making is explained in NCSBN’s 2010 NCLEX-RN Test Plan.

It is expected that this will reduce the number of qualified nurses entering the marketplace, which should grow the nursing shortage. The US Department of Labor says that nursing will be the occupation in shortest supply in this upcoming decade.

AILA responds to Neufeld Memo

AILA has sent a comprehensive letter to USCIS Chief Counsel Roxana Bacon arguing that the USCIS ought to set aside the January 8 Neufeld Memorandum Guidance that purports to limit approvals of H-1s in instances where the Beneficiary is employed at a third-party worksite. The letter, which reads like a legal brief, calls into question the core legality of the issuance of the Neufeld Memorandum, and challenges the reasoning throughout the Memorandum.

The letter’s key points are:

1. The issuance of the Neufeld Memorandum is a substantive change to existing law. Such changes to law by Memorandum are illegal under the Administrative Procedures Act. Under the APA, regulatory agencies like USCIS must first publish proposed rules in the Federal Register. Then, the agency must allow the public to comment on the changes. The USCIS must then consider and respond to the public comment.

2. The entire reasoning of the Neufeld Memorandum is unsound. In the Neufeld Memorandum, the USCIS found that existing law did not define “employer-employee” relationship. AILA contends, correctly MU thinks, that existing law does define “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Therefore the USCIS’ use of Supreme Court cases and common-law is improper since the definition is already right there in the definition.

3. To the extent that the USCIS applies the definition, it limits its focus to one of these five characteristics -- control – and fails to explore the other four characteristics – hire, pay, fire, and supervise.

4. Even if the USCIS feels that it needs help in defining “employer-employee,” the USCIS completely misapplies the relevant Supreme Court decisions. Cases such as Clackamas speak to the idea of balancing all characteristics and not limiting the analysis to the control characteristic.

5. When Congress last amended the relevant statutes in the law IMMACT90. It expressly sought to expand the definition of employer, not restrict it. USCIS is not legally allowed to violate Congress’ express intent.