Notes from the USCIS Session on Neufeld Memo

On Friday March 26, MU’s Cindy Unkenholt attended the USCIS’ listening session on the application of the Neufeld Memo for the Healthcare industry. MU’s Chris Musillo participated telephonically.

The USCIS was represented by several high-ranking officers including General Counsel Roxie Bacon and Barbara Velarde, Chief Service Center Operations. Oddly, Donald Neufeld, the author of the Memo, did not participate in the session.

Ms. Bacon pointed out that the approval rate for Therapists was unchanged since the publication of the Memo on January 8, 2010. This implies that the fears that the Memo would increase denial rates are overblown.

Other key points were raised by the attendees included,

- That the definition of employer-employee is established in the Memorandum. In conversations that I have had with multiple AILA attorneys all are confident in this position. USCIS did not comment on the legality of this definition. AILA spells out most of this argument in their recent letter.

- Co-employer. The USCIS seems to be taking the position that it must choose the "best employer" (either Staffing Co. or Facility). This is not how the law is to be applied in this area. Instead, the USCIS is only to analyze and see if the Petitioner has the right to control. Multiple parties (both Staffing Co. and Facility) can have a right to control. This is the legal foundation behind the co-employer doctrine, which has a long basis in law. Indeed, the DOL's own regulations contemplate co-employer doctrine in the FMLA regulations. See, e.g. 29 CFR 825.16.

- Burden of Proof. The Service has a policy on burden of proof. The policy is this: If the petitioner submits relevant, probative, and credible evidence that is more likely than not to be true, the USCIS must approve the case. All too often USCIS officers are not applying this standard or just paying lip-service to it.

- Expansion of the Neufeld Memo. There is also concern that this Memo is going to serve as the basis to be expanded to I-140's, etc. USCIS didn't even side-skirt the issue. Ms. Bacon implied that the USCIS will look to expand the logic behind the Memo in future Memos.

USCIS Session - Implications of H-1B Memo on Healthcare Industry

Tomorrow the USCIS will hold a public session on the impact of the Neufeld Memo on the Healthcare Industry. MU’s Cindy Unkenholt will be attending in person. If you would like to attend either in person or via telephone, please contact USCIS’ Suzie Clark, Suzanne.clarke@dhs.gov or (202) 272-1279. MU will publish a Blog post of any important information that comes out of the session, although none is expected since the session is limited to hearing industry concerns.

MU will or has raised several concerns with the application of the Neufeld Memo in the past. These include:

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.

Why the Pessimism on CIR May Be Misplaced

This week President Obama is expected to sign the long-delayed Healthcare bill, thus ending one the longer American legislative dramas in recent history. Pundits have long-suspected that immigration reform would be the next domestic issue on President Obama’s list, although most expected that the President could get Healthcare and Comprehensive Immigration Reform tackled in his first year. This weekend tens of thousands turned up in Washington to kickoff the rally for CIR.

For readers of this Blog, CIR is only critical insofar as CIR includes liberalized visa quotas and procedures for healthcare occupations that have long been in short American supply – nurses, physical therapists, occupational therapists, etc. and are expected to be in short supply in the upcoming decade.

Legislators have been hesitant to pass piecemeal legislation at targeted immigration issues. The idea has been to force all immigration issues into one comprehensive bill. This strategy was unsuccessful in 2006-7.

Because of the failure of the 2006-7 effort, pundits are skeptical that any CIR bill will be finished before this November’s mid-term election. The problem with that pessimism is that it fails to consider that all legislation is a long haul. For instance, the Healthcare bill has been declared dead more times than a horror movie villain, and yet it lives!

It helps nobody to be needlessly optimistic or pessimistic on CIR. The reality is that with hard work CIR can be passed and with targeted advocacy healthcare occupations can be part of the discussion. Have you called your Congressman?

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English testing waived for certain Visa Screen renewals

CGFNS recently announced that renewal applicants do not have to take another approved English exam for renewal of their Visa Screen certificate if they have been employed in the US for at least 27–36 months — including nine months of the year before the date an applicant submits the renewal application. Applicants will need to have their employer submit an employment summary on corporate letterhead with the appropriate signature for the English requirement to be waived.

April 2010 Visa Bulletin

The Department of State has just released the April 2010 Visa Bulletin. The relevant dates are:

EB1 – all current
EB2 – all current, except China (22 AUG 05) and India (1 FEB 05)
EB3 – all 01 FEB 03, except India (08 SEP 01) and Mexico (01 JUL 02)

This is modest progress from last month’s Visa Bulletin for All Other EB3 Applications. All Other EB3 has increased 3 months since March 2010 and 6 months since February 2010, when it was 22 SEP 2002. India EB3 has also improved from 22 JUN 2001 since February’s Visa Bulletin.

Oddly Timed H-1C Regulations

The Department of Labor has just released final H-1C regulations. The timing of the release is odd in light of the fact that the H-1C program expired on December 20, 2009.

The purpose of the late publication of the regulations is “to ensure worker protections are in place for those nurses currently employed in H-1C status, whose stays may extend beyond December 20, 2009.” Some H-1C nurses are still authorized to work in the US, although that number is shrinking with each day; extensions are no longer approvable with the H-1C program’s expiration.

The Background Information to the regulation includes a lengthy history of the H-1C program. Originally, the H-1C program was conceived as nonimmigrant solution to the nursing shortage. The usual nonimmigrant professional program, the H-1B, has only limited application for registered nurses. But the limits on the H-1C program rendered it inert for all but fourteen hospitals in the US.

There does not seem to be a groundswell of support for a reenactment of the H-1C program, since the nursing shortages have lessened with the onset of the recession. Nevertheless, the H-1C program has been extended several times in the past. It remains to be seen whether the H-1C will rematerialize when the inevitable nursing staffing shortages reemerge.

Requirements for H-1B Petitions Involving Third Party Worksites

One of the requirements of the regulations pertaining to the filing of H-1B petitions is that the Employer “has an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” 8 C.F.R. 214.2(h)(4)(ii).

Historically, documentation of the ability to hire, pay and fire an Employee was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” which reflects the current position of the USCIS on this issue. In this Memorandum, the USCIS takes the position that Petitioner (Employer) control over the Beneficiary (Employee) is paramount. The Memorandum outlines a number of factors to be considered including:

· the method and manner of supervision
· whether the Petitioner provides any necessary tools or instrumentalities for the Beneficiary to perform the duties of employment
· whether the Petitioner has the ability to hire, pay and fire the Beneficiary
· whether the Petitioner evaluates the work-product of the Beneficiary
· whether the Petitioner provides employee benefits
· whether the Beneficiary utilizes any proprietary information of the Petitioner
· whether the Beneficiary produces an end-product directly linked to the Petitioner’s business
· whether the Petitioner has the ability to control the manner, means, and the work product of the Beneficiary

MU takes the position that the January 8, 2010 Memorandum issued by Donald Neufeld, Associate Director of the USCIS, and the resulting policies of the USCIS in adjudicating H-1B petitions are ultra vires. We have joined the multitude of voices calling for a complete retraction of the Memorandum. However, until such time as the Memorandum is withdrawn, we recommend that our clients be prepared to present documentation of an itinerary and the Employer-Employee relationship.

This post is an excerpt of a larger MU Visa Advisor article authored by Cindy Unkenholt that has been sent to clients of MU. The article includes specific recommendations on improving companies’ profiles so that the USCIS finds the Petitioner is a Consultancy and not a “job shop”. If you would like a copy of the article please email Cindy Unkenholt or Chris Musillo.

AHCA to Congress: Extend Cap Exemptions

With all the bluster on Capitol Hill about Healthcare Reform, the plan to include an extension to the Medicare part B therapy cap exceptions process fell apart last week with little fanfare. The exception rule expired on December 31, 2009.

Currently there is a annual cap totaling $1,860 per patient for Therapy services. In years past, the exception to the therapy cap for patients in dire need of therapy care was routinely extended. The exception was supposed to be included in last week’s Jobs bill, but it was shelved due to political machinations.

This is having a major negative impact on many healthcare providers and the patients that they treat. The therapy industry was devastated the last time the exception lapsed for a significant period of time in the late 1990s.

If you would like to take positive action to extend the Medicare part B therapy cap exceptions, please see the AHCA CapWiz page.