AILA Week

This week, MU’s Chris Musillo and Cindy Unkenholt will be heading to the AILA Annual Conference. The Conference is being held at the Gaylord National Hotel & Convention Center, National Harbor, MD, which is just outside of Washington DC. When we return from the Conference we’ll post a summary of news and information that we uncover at the Conference. Posting on this Blog may be light this week unless something significant happens.

On Thursday night, we’ll be dining with a group of about fifteen immigration attorneys who spend a significant part of their practice on immigration for healthcare professionals. If you are an immigration attorney who is interested in participating in the dinner, please let Chris know.

Could Pres. Obama Legalize Millions and force CIR?

As President, Barack Obama does not have the authority to create new law. For instance, he could not singularly enact Comprehensive Immigration Reform, nor could he add visa numbers to needed occupational classifications, such as nurses and other healthcare EB3 positions. He can however implement policy initiatives through Executive Action.

Rumors are swirling that the President may issue a surprise Executive Order to prohibit the deportation of undocumented immigrants who have no criminal records. The rumors are not the work of partisan bloggers, but are now being picked up by credible sources, like the Miami Herald, and have been taken up in a letter by eight Republican Senators to the President.

There could be two reasons for the President to take this action. First, the President owes a debt of gratitude to the Latino community, which came out in full force for him in 2008. By legalizing millions, the President would make an enormous payment toward that debt.

Second, and critical for those who watch for Healthcare Immigration reform, the President’s action could force Republicans to the CIR negotiating table. Whether the strategy works – or whether the President is even considering the Executive Action – remains to be seen.

Is There a Nurse in the House?

The New York Times published a fantastic editorial over the weekend, which had one fatal flaw. The editorial, Is There A Nurse in the House?, was written by Theresa Brown. Ms. Brown is an oncology nurse and is a contributor to The Times’s “Well” blog. She is also the author of “Critical Care: A New Nurse Faces Death, Life and Everything In Between.”

In the article, Ms. Brown makes the case that nurse-patient ratios, such as those in California can substantially improve patient care. Ms. Brown cites work such as a recent study led by Linda Aiken, a professor at the University of Pennsylvania School of Nursing, which found that New Jersey hospitals would have 14 percent fewer surgical deaths if they matched California’s ratio, while Pennsylvania would have 11 percent fewer. The evidence is compelling: nurses save lives.

Ms. Brown explains why nurse-staffing ratios have not caught on as much as one might think.

The real issue, of course, is cost. There’s no denying that hiring more nurses is more expensive in the short term. But having too few nurses leads to burnout, not only because it’s too much work, but because good nurses quit from the stress of knowing they can’t keep their patients safe. Mandated ratios could ultimately save money, because they would reduce both staff turnover and the number of patients who become critically ill due to insufficient care.

So what is the article's fatal flaw? It should be obvious if you regularly read the MU Healthcare Immigration Law Blog. While the nursing shortage temporarily has abated, economists predict that the US' nursing shortage is expected to grow dramatically in the next decade. Ms. Brown should have explained where the nurses are going to come from. They are not coming from US nursing schools, that’s for certain.

Dinner Plans at AILA Annual?

About 15 AILA lawyers who practice in healthcare will be meeting for dinner on Thursday July 1, 2010 at the AILA Annual Conference. The group makes up the core of the FNT listserv, which is a lawyers-only email listserv that I have hosted since early 2004.

If you are an AILA Attorney who is attending the conference and would like to join us, or if you are an attorney who practices in healthcare immigration and would like to join the listserv, drop me an email.

State of Immigration Legislation - Nurses

It appears unlikely at this time that CIR will be passed in 2010. The entire US House of Representatives is up for election in November, along with one-third of the Senators. The elections are expected to be as contentious as the last few election cycles.

The only chance for positive immigration reform is through piecemeal (smaller) immigration legislation. Unfortunately the prospects for piecemeal legislation are also small, as there is little motivation in Washington DC to liberalize visa quotas given that the US’ nearly 10 percent unemployment rate. In light of these real world factors, the odds of a Schedule A visa bill in 2010 are very low.

Longer term, the odds are much better. While the nursing shortage temporarily has abated, economists predict that the US' nursing shortage is expected to grow dramatically in the next decade. This supply will be filled by internationally-trained nurses in the forthcoming years. Of course this is of little comfort to US businesses that have spent countless hours developing their international connections and international nurses who have met all licensure and Visa Screen rules, only to have the US visa quota system let them down.

The one bright spot is that we’re starting to see promotion of retrogressed dates. The DOS predicts that the Worldwide EB3 (including Philippines) should be well into 2004 by the end of the summer. If we see the same progression in FY2011 that we saw in FY2010, the Worldwide EB3 date should move through 2005 and into 2006 by the end of FY2011.

July 2010 Visa Bulletin

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

The relevant dates are:
EB-1 – all current
EB-2 – all current, except China (22 NOV 05) and India (01 OCT 05)
EB-3 – all 15 AUG 03, except India (22 NOV 01) and Mexico (U)

There was excellent progress in India EB2, which jumped 8 months from 01 FEB 05. There was also a one month progression in India EB3 and a 6 week progression in all EB3 (including Philippines).

The Visa Bulletin also included a prediction section based off of expected demand:

F. VISA AVAILABILITY IN THE EMPLOYMENT-BASED CATEGORIES

Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are as follows:

EB-1: Current
EB-2: all current, China and India: March or April 2006
EB-3: Worldwide: June through September 2004, China: October through December 2003, India: February 2002, Mexico: Unavailable, Philippines: June through September 2004.

Neufeld Memo Lawsuit Filed

The Techserve Alliance (formerly the NACCB), the American Staffing Association, and three private companies yesterday sued the USCIS alleging that the government illegally issued the Neufeld Memorandum. This issuance altered long-standing policy that had allowed staffing firms to obtain H-1B visas on the same basis as other companies.

While the Complaint has yet to be made public, the allegations are expected to be similar to those raised in prior discussions with USCIS.

In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not “employers”.

But this is wrong. Existing law defines an “employer” as one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Plainly, staffing companies meet these characteristics. Instead of applying the law as it was written, the Neufeld Memorandum allows the USCIS to pay lip-service to these five factors.

The Memorandum has caused grave concerns for many companies that use the staffing model because of inconsistent adjudication and unlawful USCIS denials. The IT staffing industry has been particularly impacted. The Memorandum derisively referred to the IT staffing model as a “job shop”. Healthcare staffing models recently have also come under fire; USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.

Fewest Intl NCLEX Test Takers on Record

The latest NCLEX data paints a dire picture for healthcare officials who may be looking toward international workers to help alleviate the nursing shortage. The first quarter of 2010 saw the fewest number of international NCLEX test takers and test passers since 2006. The 3,120 international NCLEX test passers are just 55% of peak 2007 numbers.

While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. The U.S. nursing shortage is projected to grow to between 260,000 and 500,000 registered nurses by next decade. If even the smallest estimates are correct, a shortage of this magnitude would be twice as large as any nursing shortage experienced in this country since the mid-1960s.

Only 3,120 international test takers took and passed the NCLEX in the first quarter of 2010. That’s the smallest number of international test takers since at least 2006, which is the earliest data on the NCSBN website.

In 2006, about 20,907 internationally educated RNs passed the NCLEX exam for an average of 5,227 per quarter. In 2007, the volume jumped; 22,827 internationally educated nurses passed the NCLEX exam, or 5,707 per quarter. With the onset of retrogression, 2008 saw a decline; 18,905 internationally educated RNs passed the exam, or 4,726 per quarter. In 2009, the international NCLEX pass number shrunk to 13,799 per year (3,450 per quarter).

It is obvious that reasonable visa opportunities for international nurses must happen or else the US is going to find that it has a massive nursing shortage and international nurses are no longer there to fill the gap.

Sentosa Care Lawsuit May Go To Trial

The long-running Sentosa Care lawsuit continued last week when New York Judge Stephen A. Bucaria denied Sentosa Care’s latest attempt to have the lawsuit dismissed. A grant of Summary Judgment would have been an unusual remedy in a case that has lasted four years and meandered through several courts. The ruling now appears to set the stage for a full trial between the Phillipine nurses and their old employer.

The matter began in 2006 when a group of nurses walked off their jobs at the nursing home. The nurse’s lawsuit filings have alleged unfavorable working conditions and unfair contractual clauses. Sentosa Care contends that the walk-off was illegal.