FAQ Fridays

Every Friday, MU’s Cindy Unkenholt posts her “FAQ Friday” to MU’s Facebook page. The FAQs (Frequently Asked Questions) generally focus on healthcare immigration-related issues. For instance, last week’s FAQ Friday was:

Q: Can I nurse qualify for EB-2?

To learn the answer to this one, view past FAQs, and to get the latest quick-hit new items, become a fan of MU on Facebook. The MU Facebook page also allows Fans to comment on news stories and issues that affect US immigration.

NY considering BSN requirement for RNs

At the May 2010 meeting of the New York State Education Department, the Registered Nurse Professional Practice Committee was presented with a proposal to increase the minimum educational requirement to a Bachelors degree.

Under the recommended plan, all currently-licensed RNs would be "grandparented," and would not have to obtain the Bachelors degree. Instead, all diploma and associate degreed RNs, who obtain licenses after 2012 would need to obtain a Bachelors degree within 10 years of the initiation of their license.

Nurses who failed to obtain the Bachelors degree would have their licenses put on "hold". This “hold” is similar to the action taken when a licensee fails to meet continuing education requirements in those professions that mandate continuing education as a criterion for continued registration.

Other states such as New Jersey also are considering raising their educational requirement. Advocates for the New York plan cite recent studies that show that increasing the number of baccalaureate nurses in an acute care hospital decreases the number of patient deaths. Similar legislation was introduced into the New York legislature in 2005, but was tabled because of supply concerns.

It seems inevitable that states will raise their minimum educational requirements to the level of Bachelors degree. Many countries’ minimum educational requirement is a Bachelors degree. In the US, the only state to have had a Bachelors degree minimum was North Dakota, which lowered their requirement and joined the other 49 states in the middle part of this decade.

If any state did raise their requirement to a bachelors degree, employers in that state could more liberally use the H-1B visa as a partial solution to their expected long-term nursing supply shortages. The H-1B can be used to employ some Registered Nurses.

Visa Bulletin Analysis and Predictions

In the January 2010 Visa Bulletin, the Department of State made “best case” predictions on where the visa numbers would be in September 2010, which is the end of the Fiscal Year 2010. October 2010 is the first Visa Bulletin of Fiscal Year 2011.

In this Blog post, MU has done a analysis of the progress of these projections, including the just-released June 2010 Visa Bulletin. Most of the DOS' projections are proving to be accurate, with the notable exception of All Other EB3, including the Philippines.

India EB2
June 2010: 01FEB05.
Predicted Sept 2010: February through early March 2005
MU Comment: The India EB2 visa number is right on the mark.

China EB2
June 2010: 22NOV05.
Predicted Sept 2010: July through October 2005.
MU Comment: The China EB2 visa number has already surpassed the “best case” scenario, which is good news.

India EB3
June 2010: 22OCT01.
Predicted Sept 2010: January through February 2002.
MU Comment: The India EB3 number has steadily moved since January 2010, when the India EB3 number was 22JUN01. The number looks to be on pace to meet the predicted number.

China EB3
June 2010: 22JUN03.
Predicted Sept 2010: June through September 2003.
MU Comment: The China EB2 visa number is right on the mark.

All Other EB3 (incl. Philippines)
June 2010: 22 JUN 03.
Predicted Sept 2010: April through August 2005
MU Comment: This is the prediction that is the most disheartening. By now we would have expected the All Other EB3 to be well into 2004, and maybe even into 2005. The fact that the number is still in mid-2003 leads us to believe that the predicted date will not be reached.

That having been said, MU expects the All Other Visa Number to begin to move at a quicker pace. There does not appear too many cases that are still left that are this old on our roster of cases and on the roster of cases still with other attorneys.

June Visa Bulletin

The Department of State has just released the June 2010 Visa Bulletin

The relevant dates are:
EB1 – all current
EB2 – all current, except China (22 NOV 05) and India (01 FEB 05)
EB3 – all 22 JUN 03, except India (22 OCT 01) and Mexico (U)

This is slow progress from the last few Visa Bulletins for All Other EB3 Applications. All Other EB3 has increased 9 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 remains unavailable, as it is expected to be until the end of the fiscal year in September 2010.

Election Season

Two of the largest suppliers of healthcare professionals to the US are the Philippines and the UK. MU attorneys and staff have traveled on many occasions to both countries for recruiting and information sessions with our clients. This week both countries had groundbreaking elections.

Senator Benigno “Noynoy” Aquino III is poised to become the first Philippine president elected through an automated election. President-elect Aquino is the son of former President Corazon Aquino and former Senator Benigno Aquino, Jr.

In the UK, David Cameron looks to lead the first British coalition government since World War II. The coalition agreement ends a week of discussion and negotiations between Cameron’s Conservative government and the upstart Liberal Democrats.

MU congratulates nationals of both countries on their landmark elections.

And lastly, Happy Nurses Week to all of our Nurse readers!

FCCPT reapproved until 2015

The Foreign Credentialing Commission on Physical Therapy (FCCPT) has been re-approved by USCIS to issue Healthcare Worker Certificates for an additional 5 years, through 2015. FCCPT is one of two organizations that are approved to issue Healthcare Worker Certificates for Physical Therapists. The other, CGFNS, issues the Visa Screen as its Healthcare Worker Certificate. FCCPT’s Healthcare Worker Certificate is known as the Type I.

The Healthcare Worker Certificate is a prerequisite for all US visas, including the H-1B, TN, and the EB2 and EB3 green cards. Either the FCCPT or the CGFNS is sufficient.

California BRN now requires SSN

On April 26, 2010, the California Board of Registered Nursing announced that it would no longer accept applications that do not have a Social Security Number. The California BRN reasons that since the Nursing Practice Act provides for automatic issuance of the license upon approval, the Social Security Number is a prerequisite to the filing of the application. This is problematic for overseas nurses who are ineligible for Social Security Numbers by virtue of not having US visas and work authorization.

If a nurse has passed the NCLEX and the only issue holding up the issuance of the license is the lack of a Social Security Number, the USCIS should still approve the visa petition. This process would be consistent with the USCIS’ long-standing procedure on petitions solely lacking Social Security Numbers.

For instance, a November 20, 2001 INS (predecessor to the USCIS) Memo directs USCIS officers to approve petitions when the sole missing item is the social security number. Similarly a May 20, 2009 USCIS Memo reiterates this position.

Healthcare Immigration Primer: Occupational Therapists

TEMPORARY OPTIONS: Occupational 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.

An Occupational 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 (43) listed occupations.

GREEN CARD OPTIONS: Occupational Therapists have not been designated as a Schedule A occupation, and therefore they are not exempt from the labor certification process (“PERM”). Therefore, the green card process for an Occupational Therapist will require PERM labor certification process followed by either Adjustment of Status or a Consular Interview.

Because the first professional degree required for licensure as an Occupational Therapist in the United States is evolving, some Occupational Therapist 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 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 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 difficult, although these can be approved in some instances where the employer requires a Bachelors degree and five years of progressive experience or the employer requires a Masters degree.