Obama Says No

The President has sounded the death knell for immigration reform in 2010. Those expecting immigration reform this year – including nurses and other healthcare workers – should not expect any action until after the mid-term elections in November 2010.

The President’s remarks ended some speculation this week that the Senate would attempt to move on immigration. Earlier, a group of Senators released a new summary Comprehensive Immigration Reform bill -- the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) bill. REPAIR was co-authored by many leading Democrats: Senators Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Dianne Feinstein (D-CA), and Robert Menendez (D-NJ). It provides a path forward for both political parties to come together and enact a lasting federal fix to the problem this year.

The actual bill language has yet to be released, although summaries have been published. At this point, it is unknown whether there is a specific liberalizing provision for Schedule A occupations – Registered Nurse and Physical Therapists. Past versions of CIR have included such a provision.

To some degree, it doesn’t matter. The President indicated that immigration is a secondary domestic priority and it is unlikely that immigration reform will be taken up in 2010.

Healthcare Immigration Primer: Physical Therapists

TEMPORARY OPTIONS: Physical Therapists are eligible for H-1B status because the position requires at least a Bachelor’s degree. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A Specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

A Physical Therapist who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.

GREEN CARD OPTIONS: Because Physical Therapists have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Physical Therapist will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.

Because the first professional degree required for licensure as a Physical Therapist in the United States is evolving, some Physical Therapy positions are eligible for EB-2 classification while others are only eligible for EB-3 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience.

The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience. The classification is relevant to when an immigrant visa is available.

Generally speaking there is no backlog for EB-2 visas for most countries (excluding India, Mexico, and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

CURRENT ISSUES: Filing EB-2 applications is a fairly new phenomenon. MU has had several EB-2 applications approved for applications requiring 5 years of experience.

Read the full Healthcare Immigration Primer by clicking here.

Healthcare Immigration Primer: Registered Nurses

TEMPORARY OPTIONS: Registered Nurses are generally not eligible for H-1B status because the position generally does not require at least a Bachelor’s degree or the equivalent. However, it is possible to obtain H-1B status for a Registered Nurse if the position requires a Bachelor’s degree or the equivalent. H-1B status provides temporary employment authorization in the United States for individuals from any country for any specialty occupation. A specialty occupation is one which normally requires at least a Bachelor’s degree or the equivalent.

A Registered Nurse who is a Canadian Citizen is eligible for TN status. [Note: Residency status in Canada is not sufficient for TN eligibility.] TN status is available to Canadian citizens with an offer of employment in the United States in one of forty-three listed occupations.

GREEN CARD OPTIONS: Because Registered Nurses have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (“PERM”) required for most employment based immigrant visas. Therefore, the green card process for a Registered Nurse will be either the Schedule A I-140 Petition (Consular Processing) if they are outside of the United States or the Schedule A I-140 Petition (Adjustment of Status) if they are already physically present in the United States.

CURRENT ISSUES: Because some Employers do in fact require a Bachelors degree or the equivalent for some Registered Nurse positions, some Registered Nurses are eligible for H-1B status. The USCIS has acknowledged that certain Advanced Practice nurses as well as some specialty nurse positions (such as Critical Care and Peri-Operative) may be eligible for H-1B status.

To qualify as a specialty occupation [according to 8 CFR §214.2(h)(4)(iii)(A)], the position must meet at least one of the following criteria:

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
• The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree
• The employer normally requires a degree or its equivalent for the position
• The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with attainment of a baccalaureate or higher degree.

The USCIS takes the position that each year of education is equivalent to three years of experience. Thus, for example, an employer that normally requires a Bachelor’s degree in Nursing or an Associate’s degree and at least six years of experience is able to attest that the position normally requires a Bachelor’s degree or the equivalent.

Read the full Healthcare Immigration Primer by clicking here.

MU Healthcare Immigration Primer: The Series

Over the next few posts MU will be posting basic US immigration information for common occupations such as Registered Nurses, Physical Therapists, and Occupational Therapists. If there are any occupations that you would like us to focus on, please let us know either via email or via the comments.

This posting will focus on some preliminary thoughts and issues that are common in most visa Petitions and Applications. The subsequent postings will highlight the specific occupations.

In all instances, there must be an employer who is the Petitioner of the visa. Generally the Beneficiary must hold the appropriate state license, although a few exceptions will be noted.

For those who are overseas, any healthcare immigration case generally starts with an immigration Petition filing in the United States. Upon approval of the Petition, the case is forwarded to the appropriate US Consulate or Embassy where the visa is issued to the beneficiary.

Upon visa issuance, the Beneficiary can enter the US. Family members generally can attend the interview and are issued derivative visas. Some derivative visas allow the derivatives work authorization and others do not.

There are two broad visa categories: nonimmigrant and immigrant visas. Nonimmigrant visas (also called NIVs or temporary visas) typically are for shorter periods of time. NIVs also tie an employer and employee. In other words if the Beneficiary wants to move to a new employer, a new NIV must be filed.

Once issued, Immigrant visas (also called IVs, green cards, or permanent residency) typically remain valid for 10 years. Immigrant visa holders also become eligible for US Citizenship, ordinarily after 5 years. IVs also may sponsor certain family members for US immigration, although the retrogression for some family categories is lengthy.

What the USCIS learned

Does the USCIS fully understand the law and the legal implications of the Neufeld Memorandum? An April 15, 2010 Executive Summary of a recent teleconference implies that the Service may be getting the message, although the Executive Summary may confuse as much as it informs.

The Neufeld Memo’s main flaw is that it misreads the underlying regulation. 8 CFR 214.2(h)(4)(ii) holds that a U.S. employer is indicated by five characteristics: hire, pay, fire, supervise, or otherwise control. This regulation is controlling. Incorrectly, the Neufeld Memo implies that “right of control” is a superior characteristic encompassing the other characteristics.

In order to attempt to get its hands around the growing confusion, the USCIS held a Listening Session on March 26, 2010. MU’s attended and participated at the Session.

The USCIS’ recently released Executive Summary from that session recognizes that “if” right of control is required, then the Neufeld Memo contradicts the existing regulation. The Executive Summary goes further and agrees that “if” right of control is only one of the five elements, then an amendment is needed to the Memo.

These are not small issues. Staffing companies use the H-1B visa to supply staff to third-party worksites, mainly where well-documented US supply is short. At this point, it simply makes sense for the USCIS to suspend or withdraw the Neufeld Memorandum. At best, the Memo makes a confusing area of law incomprehensible. At worst, it takes a simple regulation and misapplies it.

MU Comments on the Proposed I-129

To little fanfare the USCIS recently announced a new proposed Form I-129. The Form I-129 is used in many business nonimmigrant filings, including the H-1B. The USCIS asked for public comments on the proposed revisions. Musillo Unkenholt recently filed our comments with the USCIS.

While Musillo Unkenholt has several problems with the proposed revised Form I-129, MU elected to highlight the most significant change in our comments to the USCIS. Namely, the apparent new requirement that an amended H-1B Petition must be filed whenever a H-1B worker changes his geographical location. This new requirement quietly was snuck into the new Form’s instructions.

This has never been USCIS policy. The USCIS’ current policy remains unchanged since the early 1990s. In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

We invite you to read the MU letter. AILA has also published a lengthy letter that was also submitted to the USCIS as part of the comment period. AILA's letter raises a number of excellent points.

USCIS recently has begun to engage the public in advance of changes. MU applauds this effort and has actively participated in several of the USCIS’ outreach sessions. This effort to slip a massive change past the immigration bar belies that effort.

May Visa Bulletin

The Department of State has just released the May 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 22 APR 03, except India (01 OCT 01) and Mexico (U)

This is modest progress from the last few Visa Bulletins for All Other EB3 Applications. All Other EB3 has increased 8 months since February 2010 Visa Bulletin, when it was 22 SEP 2002. India EB3 has also improved about 4 months since February’s Visa Bulletin (22 JUN 01). Mexican EB3 has become unavailable.

H-1B numbers down dramatically

Filing for the H-1B visa cap opened on April 1, 2010, and this year the filing numbers are down dramatically. Filing numbers are about one-third of last year’s numbers and a staggering 10% from the H-1B filing numbers in the middle of the past decade.

Each year, the USCIS is allowed to approve 65,000 H-1B “regular” Petitions. USCIS is also allowed to approve 20,000 H-1B “Masters” Petitions; these are cases for foreign-workers who have graduated from a US-based University with at least a Masters degree. Any cases received at one of the two H-1B Service Centers before April 7 are treated as “Day One” filings.

Reports have indicated that the Vermont Service Center has received about 7,500 cap-subject “regular” H-1 Petitions and about 3,000 Masters Petitions. Yesterday’s report, which is from an AILA member at a Vermont Service Center meeting, indicates that there were similar numbers received at the California Service Center.

All told, this means that fewer than 15,000 regular H-1B Petitions have been received and 6,000 US Masters degree H-1Bs. Last year the USCIS received a little more than 40,000 regular H-1 filings during the first week. In the middle of the decade it was common for the USCIS to receive over 100,000 H-1B petitions.

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.

Schumer and Graham on CIR

This past Sunday, Sens. Schumer and Graham were featured on NBC’s Meet The Press (you can watch the four minute clip where the Senators talk immigration at NBC's website). Sen. Graham said that he would continue to work with Sen. Schumer to pass CIR. These two Senators have been leading the push for CIR. The conventional wisdom is that the House will not push forward on CIR unless the Senate acts firstly, which is why it is so important that these two are willing to move ahead.

Last week, Sen. Graham said that immigration would be the first casualty of partisanship if the Democrats pushed through the healthcare bill, which is exactly what the Democrats did. On Meet The Press, he backed off that position.

“I will keep working with Chuck on immigration [but] immigration’s tough,” said Sen. Graham. The Senator cautioned that unless President Obama leads the charge, “tough sledding lies ahead.”

Is immigration reform dead? “I don’t think so,” said Sen. Schumer. Sen. Schumer continued, “We’re real close.” The Senator then listed groups like labor, business, and religious entities that are ready to sign on.

Many are willing to come to the simple conclusion that CIR has no chance of passing in 2010. That is certainly the likely outcome. As I have said before, the pessimism may be misplaced. 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?