HOUSE PASSES HR 3012

On Tuesday, November 29, the House of Representatives passed HR. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15. The Senate must now consider the bill. If the Senate passes HR 3012, President Obama is expected to sign the HR 3012 into law.

The measure, if passed into law, would eliminate the per country numerical limitation for employment-based immigrants. The Immigration and Nationality Act generally provides that the total number of employment-based immigrant visas made available to natives of any foreign country in a year cannot exceed 7% of the total number of such visas made available in that year. The bill eliminates this per country percentage cap in a phased in process between 2012 and 2015.

SEATING OPTIONS FOR THE NPTE

The next National Physical Therapy Exam is scheduled for December 5, 2011. The NPTE’s website regularly publishes the lists of test sites and the number of seats that are available for each site. The list breaks down by individual Prometric facility. Prometric is the independent test administrator for the NPTE. The NPTE is written and graded by the Federation of State Boards of Physical Therapy (FSBPT).

H-1B CAP REACHED

The USCIS announced that the Fiscal Year 2012 H-1B cap was reached on November 22, 2011. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that arrive after November 22, 2011.

International workers who are working 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 “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B must wait to file their Petition until April 1, 2012, for an employment start date of October 1, 2012. "Cap-subject" H-1B petitions 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

* Prospective international employees currently living abroad

H-1 CAP TO BE REACHED BEFORE THE END OF NOVEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible.  MU now believes that the H-1B cap may be reached before the end of November.

The latest USCIS update is that 56,300 of the 65,000 regular H-1B numbers have been used as of November 14, 2011, leaving about 8,000 H-1B visas.  The demand for H-1B numbers has surged in the last few weeks.

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
• Prospective international employees currently living abroad

International workers who are working 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 “H-1B transfer” cases and may be filed at any time throughout the year.

The USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”.  The H-1B Masters Cap has been reached.  H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

DECEMBER 2011 VISA BULLETIN

The Department of State has just released the December 2011 Visa Bulletin. The December Visa Bulletin is the third Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about three months.

Dec 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	15MAR08	15MAR08	Current
EB-3	15JAN06	08SEPT04	01AUG02	15JAN06

EB2 FOR PHYSICAL THERAPISTS

For many non-Indian and non-Chinese natives, the EB-2 Permanent Residency visa (green card) provides a fast and cost-effective alternative to the H-1B process. The EB-2 also allows for a much faster green card process when compared to the EB-3 Permanent Residency process.

The EB-2 is available when the employer requires a Masters Degree for entry into the position and the Physical Therapist holds a Masters Degree. USCIS regulation says that a Masters Degree is equivalent to a Bachelors Degree and five years of progressive experience.

MU Law has successfully applied for the EB-2 for many Physical Therapists who have five years of progressive experience in occupation after the attainment of their Bachelors degree.

The USCIS has been inconsistent in their adjudication of Physical Therapist EB-2 Petitions when the Therapist holds an FCCPT “first professional degree” evaluation. The inconsistency largely is due to some degree being titled, Bachelor Degree, when in fact, these degrees are equivalent ot a US Masters Degree.

Legally speaking, the USCIS ought to be approving these Petitions since the independent FCCPT evaluations equate the Physical Therapists foreign degrees to a US Masters Degree. FCCPT is a premier credentialing evaluator for Physical Therapists. In May 2010, its FCCPT Type I Certification was re-certified by the USCIS until 2015. CGFNS offers a similar certification called the Visa Screen. CGFNS is also a premier credentialing evaluator for Physical Therapists.

MU Law successfully has filed many EB-2 Petitions for many Employers and Therapists. These Petitions are not simple filings, but require a substantive legal analysis of the employer’s hiring practices and the Therapists’ educational background. If you are interested in having an MU attorney review your matter for applicability as an EB-2 Permanent Residency green card, please contact Chris Musillo or Cindy Unkenholt.

H-1B CAP TO BE REACHED IN DECEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible. The H-1B cap likely will be reached in December 2011.

The latest USCIS update is that 49,200 of the 65,000 regular H-1B numbers have been used as of October 28, 2011, leaving 15,800 H-1B visas. Based on prior year’s usage, MU expects that the demand will rise again in November. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

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
• Prospective international employees currently living abroad

International workers who are working 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 “H-1B transfer” cases and may be filed at any time throughout the year.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”. The H-1B Masters Cap has been reached. H-1B Masters Cap petitions are now also counted against the regular H-1B cap.