H-1 CAP MOVES SLOWLY

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 8,000 H-1B cap-subject Petitions have been receipted by USCIS. This is much lower than in recent years and likely reflects the fact that while the US economy has improved in the recent months, it is not nearly as robust as it was in the middle part of the last decade.

The USCIS has receipted in about 6,000 Masters Cap H-1B Petitions. To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there was about 40,000 H-1Bs receipted in by USCIS through May 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy.

BLS: HEALTHCARE JOBS STILL GROWING

The latest US Bureau of Labor Statistics Employment Situation Summary says that although US unemployment rate is still at 8.8%, jobs are still plentiful in healthcare. Since November, many Americans have found jobs. The unemployment rate has tumbled from the November high of nearly 10%.

Health care employment continued to increase in March (+37,000 jobs). Over the last 12 months, health care has added 283,000 jobs, or an average of 24,000 jobs per month. The conclusion remains the same for employers in this sector as it has for the previous 20+ years: internationally-trained staff will remain a significant part of the US healthcare workforce.

PRES. OBAMA HOLDS IMMIGRATION MEETING

With President Obama's re-election campaign beginning in earnest, he is anxious to court immigration-friendly voters. These voters tend to live in important states such as Florida, Texas, and California. The President is far from a sure thing to be re-elected. The President's greatest "strength" right now, is the lack of compelling Republican challenger.

In order to burnish his credibility with these pro-immigration voters who could sway a tight election, the President yesterday met with high-profile immigration-friendly people, such as Arnold Schwarzenegger, New York Mayor Michael Bloomberg, and San Antonio Mayor Julian Castro, all who have called on the President to lead on immigration reform.

Unfortunately, no serious analysts believe that the President is doing anything other than paying lip-service to immigration reform, despite needed visa liberalization in shortage occupations, such as Physical Therapy, Occupational Therapy and Registered Nursing.

MAY 2011 VISA BULLETIN

The Department of State has just released the May 2011 Visa Bulletin. This Visa Bulletin had small progress in several classifications. Notably, the India EB-2 date moved two months.

May 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01AUG06	01JUL06	Current
EB-3	22AUG05	15APR04	15APR02	08SEP04

The Bulletin also included a lengthy explanation and prediction of future month's expected dates:

Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from Employment Third to Employment Second preference is very high, but the exact amount is not known. Such “upgrades” are in addition to the known demand already reported, and make it very difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. While thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India Employment Second preference per-country annual limits, it is not known how the “upgrades” will ultimately impact the cut-offs for those two countries. (The allocation of “otherwise unused” numbers is discussed below.)

China: none to three weeks expected through July. No August or September estimate is possible at this time.

India: One or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: three to six weeks
China: one to three weeks
India: none to two weeks
Mexico: although continued forward movement is expected, no specific projections are possible at this time.
Philippines: three to six weeks

Please be advised that the above ranges are estimates based upon the current demand patterns, and are subject to fluctuations during the coming months. The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced.

US ENVOY TO PN NURSES: “BE GREAT”

“Dare to be great nurses… Dare to build a better Philippines and a better America.” This was US Envoy to the Philippines Henry Thomas’ challenge to the graduating class of Angeles University Foundation’s College of Nursing on Saturday.

While his challenge was clear, his views on the likelihood of the retrogression were less so. “All I can say is, clearly, there’s a demand in the US but also, as President Obama has said, we have nursing graduates in the US who also have to finish their examinations and obtain jobs.”

This wishy-washy statement perfectly captured President Obama’s inconsistency and lack of focus on the necessity of alleviating the retrogression. On one hand, the President has said many of the right things on making an immigration system that is fair to all – American patients, American healthcare staff, and foreign-trained healthcare staff. On the other hand, his lack of action and lack of leadership has frustrated all stakeholders.

FOREIGN AFFAIRS MANUAL UPDATED

The Department of State has updated their Foreign Affairs Manual (FAM) to reflect the fact that B1/B2 applicants ought to be given visas to come to the US to take the NPTE. MU encourages all B1/B2 applicants who had been denied B1/B2 visas for this reason to re-apply for a B1/B2 interview.

As we mentioned in our last MU update, all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US. Failure to prove nonimmigrant intent remains a valid reason for the Consular/Embassy official to deny the B1/B2 application.

Updated FAM:

9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant

(CT:VISA-1635; 03-31-2011)

The requirements for classification as an H-1B nonimmigrant professional

may or may not include a license because States have different rules in this

area. If a State permits aliens to enter the United States as a visitor to take

a licensing exam, then USCIS will generally require a license before they will

approve the H-1B petition. However, some States do not permit aliens to

take licensing exams until they enter the United States in H-1B status and

obtain a social security number. Therefore, a visa should not be denied

based solely on the fact that the applicant does not already hold a license to

practice in the United States.