FSBPT's odd policies continue to baffle

Yesterday, the FSBPT announced on their webpage that any post- July 11 NPTE test-takers would have their results held until at least October 1, 2010, if they graduated from a school in the Philippines, India, Egypt or Pakistan. The scores are being held pending a psychometric review of each test-takers’ results. Certain post-July 11 test takers should expect to have their scores invalidated; while others’ test results will be allowed to stand.

As has been consistently the case since the July 12 announcement, the FSBPT has been vague and inconsistent in their message. This vagueness and inconsistency calls into question the FSBPT’s ability to manage this situation.

With this latest webpage notice, the FSBPT has not explained what it looks for when it performs the psychometric review. More oddly, test takers whose scores have been invalidated may still be eligible to take the NPTE-YRLY in 2011 if they continue to meet their states’ eligibility requirements. This goes against the purpose of a review, which is presumably to protect the US public from cheating test takers.

Is the FSBPT’s Policy impacting you?

Have you been impacted by the FSBPT’s discriminatory policy against Philippine, Indian, Egyptian, and Pakistani graduates? If so, please contact Chris Musillo or Cindy Unkenholt. We are working with like-minded immigration attorneys, recruiters, staffing companies, and other stakeholders with a goal of solving this crisis.

We presently are limiting our scope only to those who hold US immigration status – US citizens, US Legal Permanent Residents, and valid nonimmigrant visa holders (for example H-4 or F-1). You should also have filed a state license application or have the necessary criteria to file the state license application. Again, if you fit this profile, please contact either one of us.

H-1B News -- Filing Fee Increase, Neufeld Memo

August 2010 is shaping up to be one of the toughest months for H-1B employers. In the last few days, we have a seen a targeted H-1B filing fee increase and the dismissal of a lawsuit that sought to overturn the Neufeld Memorandum.

Fraud Fee Increase

Late last week, the House and Senate quickly passed a massive H-1B and L-1 filing fee increase. The increase was instantly signed by the President.

Effectively immediately, H-1B and L-1 employers with more than 50 employees and who have workforces with 50% H-1B or L-1 workers, will see an increased fraud fee on new petitions. Previously, the fraud fee was $500. The new L-1 fraud fee will be $2,750 and the new H-1B fraud fee will be $2,500.

New petitions are a Beneficiary’s first L-1 or H-1B visa for a Petitioner. Typically, new Petitions are when the Beneficiary is (i) a new hire from overseas or from another nonimmigrant visa status, (ii) a student ending their OPT, or (iii) an L-1 or H-1B transfer from another L-1 or H-1B employer.
The fraud fee does not apply to employees’ L-1 or H-1B extensions since these are not "new" filings.

Neufeld Memo Lawsuit Dismissed

Earlier this summer a consortium of recruiting and staffing companies sued the USCIS, contending that the Neufeld Memorandum was contrary to law. On Friday, a federal Judge dismissed the case. The Judge's opinion says that the Neufeld Memorandum is legally permissible because the Memorandum is simply “guidance” and not binding on USCIS officers. The Plaintiffs had hoped that the federal Judge would force the USCIS to withdraw the Neufeld Memorandum.

The Neufeld Memorandum limits approvals of H-1Bs where the Beneficiary is employed at a third-party worksite. 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”.

The Memorandum derisively referred to the IT staffing model as a “job shop”. USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.

MU has seen much stricter evaluations in third-party worksite situations. Although we have not seen a material rise in denials, we have seen more RFEs issued in many H-1B cases where the employee is set to work at a third-party worksite.

September Visa Bulletin

The Department of State has just released the September 2010 Visa Bulletin. Again, there has been a notable promotion of priority dates.

The relevant dates are:

EB-1 – all current
EB-2 – all current, except China (08 MAR 06) and India (08 MAY 06)
EB-3 – all 15 DEC 04, except China (22 OCT 03), India (01 JAN 02), and Mexico (U)

Notes on specific countries:

China: China EB2 improved by two months since the August Visa Bulletin. China EB3 remained the same.

India: India EB2 improved by two months. There was excellent progress in India EB2, which has now jumped 15 months since the May 2010 Visa Bulletin from 01 FEB 05. India EB3 however did not move from the August 2010 Visa Bulletin.

Philippines: The Philippines’ Priority Dates remain with the All Chargeability countries, which is a good sign. The EB3 has leapt ahead in recent months. It may move to 2005 in October.

H-1 Cap Update: 27,300 used

The H-1B is the common employment-based nonimmigrant visa. 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.

The US government can issue 65,000 cap-subject H-1Bs in any given year. An additional cap of 20,000 H-1Bs is set aside of graduates of US Masters Degrees programs (or greater programs, including Ph. Ds). For the middle part of this decade, the H-1B cap was fully subscribed on the first day that Petitions were allowed to be filed, April 1.

This year has seen the smallest number of H-1B Petitions in many years. Through the end of July, just 27,300 cap-subject H-1Bs have been approved and 11,600 cap-subject Masters H-1Bs. Last year, we saw almost twice as many H-1Bs at this time and last year’s cap-subject H-1B cap lasted until mid-December. This year’s numbers indicate that the cap-subject H-1B quota should be available until at least early 2011.

Generally speaking “new” H-1B petitions are subject to the H-1B cap. Employees that may need an H-1B visa include:

- International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
- International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
- Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
- Prospective international employees currently living abroad.

International workers who are working here in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

With the economic conditions of the last two years, H-1B usage has slowed dramatically. As I have argued in the past, less H-1B usage in a shrinking economy is evidence of the lack of fraud in the H-1B program.

Combating the FSBPT’s Discrimination Policy

As we have previously posted, the FSBPT's July 12 policy barred graduates from universities in the Philippines, India, Egypt and Pakistan from sitting for the NPTE. Under the FSBPT’s current policy, graduates from those four countries will be given their own separate but equal exam starting in the Fall of 2011.

MU knows that several states have begun contacting the FSBPT to inquire if the FSBPT can speed up this process or rescind it. Some states may act in the next few days.

Once the letter is issued, it will be incumbent on the FSBPT to reconsider alternatives to their separate but equal approach or run the risk of legal action. MU is also aware of several different parties and states that are consulting with attorneys to evaluate their legal options. Legal action is the least –desired course of action. If you have been denied an opportunity to take the NPTE and you are in the US and would like to help remedy the FSBPT’s policy, please contact Cindy Unkenholt or Chris Musillo.