B-1 IN LIEU OF H-1

Applicants for H-1B visas can sometimes use the B-1 visa as a substitute to enter the US and perform typical H‐1B services. This little-known category can be helpful when the H-1B cap has been reached. The "B-1 in Lieu of H-1" is not without its critics. Some IT companies have been accused of using the "B-1 in Lieu of H-1" to circumvent visa law. In April, Sen. Grassley called for a "thorough review" of the "B-1 in Lieu H-1" program.

In response The Department of State recently reiterated the standard for the "B-1 in Lieu of H-1". It is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad.

The applicant must: (1) work for a U.S. business enterprise that has a separate foreign business enterprise; (2) the salary paid by such foreign entity should not be considered as coming from a 'U.S. source'; (3) in order for an employer to be considered a 'foreign firm' the entity must have an office abroad and its payroll must be disbursed abroad.

To qualify for a B‐1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee's salary, and the source of the employee's salary must be abroad. The applicant must also meet the usual non-immigrant requirement incumbent in all B-1 applications.

A BETTER PHASE-IN PLAN FOR HR 3012

As we mentioned in an earlier blog post this week, the viability of HR3012 hangs in the balance. Congress will work until August 4 and then take a month off. The legislative calendar has some openings in September, although many Senators and Representatives focus will be on their own re-election campaigns and supporting other’s re-election efforts. The close Presidential campaign also means that much political momentum will be drawn away from immigration legislation and toward President Obama and challenger Mitt Romney.

Several comments to this blog have raised the very fair question of why Congress chose to pinch immigrant visa numbers away from the Rest of World in order to equalize the Employment Based categories. It’s a very fair point that has been made. HR 3012’s effect will be to delay EB2 and EB3 visa numbers for non-Indian and non-Chinese natives. It is unclear at this time what it means for Philippine natives, although the best guess is that Philippine EB3 will also be hurt by HR3012’s enactment.

MU Law’s position is that this is unfair and that solving one unfair policy (retrogression dates determined by birth) by creating another unfair policy (delaying approval for scores of applicants who have played by the rules) is wrong. The correct thing to do would be for Congress to guarantee reasonable processing times for all EB-2 and EB-3 visa applicants who presently have approved I-140s.

One way to do this would be to create a better phase-in plan than the current three year phase-in plan. HR’3012’s three year phase-in gradually raises the per-country caps until all EB applications are in the same retrogression schedule. The math on the phase-in is complex. It is nearly impossible to guess where the EB-3 priority dates will eventually settle if HR 3012 becomes law. Adding to the complexity is the real-world fact that no-one, including the Department of State, knows how many of those pending EB-3 applications are still viable.

A better plan would guarantee all EB-2 and EB-3 applicants that their retrogression would not increase as a result of HR 3012. So for instance if a ROW EB-3 has a priority date of September 2008 on the day that HR3012 becomes law, and the ROW Visa Bulletin is September 2006, then that applicant would be guaranteed a green card two years from the date of the enactment of HR3012. This plan would be simple to institute and could be crafted in a way as to not increase visa numbers.

Unfortunately, Congress has chosen to use the three year phase-in, which is more complex and ultimately serves neither constituency. It’s neither fair, nor easily applied.

SEN. "BIG GOVERNMENT" GRASSLEY

Sen. Grassley (R-IA) has released his “hold” on HR 3012. HR 3012 has many components to it. It notably calls for an elimination of “per-country” immigrant visa (Green card) caps, which historically have limited the amount of employment-based green cards from any one country to seven percent of the total immigrant visa total. These per-country caps have created a longer processing time for those from high visa-demand countries such as India, China, and to some extent, the Philippines. These per-country caps have been based not on the skill-level of the immigrant, but on the immigrant's country of birth. It seems unlikely that such a policy would ever be passed today. Congress is right to get rid of them.

That having been said, HR 3012 comes with some warts, mainly as a result of a necessary deal with Sen. Grassley (R-IA), who passionately believes that employment-based immigration is bad for America. Sen. Grassley's amendment gives broad, "big-government" power, to the Department of Labor. The DOL will be allowed to delay and deny Labor Condition Applications for the vaguest of reasons. Sen. Grassley's expansion of government oversight is intellectually inconsistent for a Senator who just last week found expansions of government oversight by the Food and Drug Adminsitration to be "shocking".

With the Senate's summer recess drawing near, whether HR 3012 moves forward is an open question, although still more likely to happen than not. There are rumors that several other Senators are concerned with Sen. Grassley's amendment and may delay or deny the bill's passage. This would be a shame because the bill's main purpose, elimination of per-country caps, is an admirable one.

HOW MANY VISAS ARE USED BY HEALTHCARE?

Answer: Not many, at least when compared to IT.

The DOL just has published its Factsheet: H-1B Temporary Visa Program - Selected Statistics, FY 2012 Year-To-Date and the paucity of Healthcare petitions is startling. The IT community uses the vast majority of H-1Bs. Eight of the Top 10 occupations are IT jobs. All ten of the largest H-1B employers are IT -related companies. So how many H-1Bs are used by Physical Therapists, Occupational Therapists and other healthcare occupations? Unfortunately the DOL does not expand beyond their Top 10 lists.

The Permanent Residency data is a bit more forthcoming. At six percent of the overall total, "Healthcare Practitioners & Technical" was the fifth greatest occupational classification in terms of approved Labor Certifications. Six percent was 2,100 approved Labor Certifications and includes Registered Nurses, Physical Therapists, Occupational Therapists and about one hundred other jobs. These numbers still pale in comparison to "Computer/Math," which makes up 54% (18,800) of all approved Labor Certifications.

EXPEDITED CES AT CGFNS

CGFNS has just announced that it now offers an Expedited Review Service for their Credentials Evaluation Service (CES) Academic Reports. The Expedited Review Service has a ten-day review period, provided that CGFNS is in possession of all of the applicant's documentation.

If any documents are missing, CGFNS will notify the applicant of any missing document within the ten day period. Once the missing documents are provided to CGFNS the ten-day clock will start anew. The fee for this Service is $175 if the Expedited Review Service is selected at the time of the initiation of the application. Existing application may be upgraded to the Expedited Review Service for a fee of $275 ($100 more than if the selection is made at the application's initiation). These fees are in addition to the usual CGFNS processing fees.

AUGUST 2012 VISA BULLETIN

The Department of State has just released the August 2012 Visa Bulletin.

This Visa Bulletin contains no surprises. EB-2 China and India remain Unavailable and will remain Unavailable until the October 2012 Visa Bulletin, which is the first one of US Fiscal Year 2013. The conventional wisdom is that the EB-2 China and India dates will leap ahead, although how far ahead remains to be seen.

The EB-3 categories had their usual slow but steady progress in the August Bulletin, a pace that is expected to remain for the foreseeable future.

August 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	01JAN09	U	U	01JAN09
EB-3	08SEPT06	08NOV05	01OCT02	15JUN06

PNAA ANNUAL CONVENTION

The Philipine Nurses Association of America holds their 33rd Annual Convention this week in San Antonio. The mission of the PNAA is to uphold the positive image and welfare of its constituent members; promote professional excellence and contribute to significant outcomes to healthcare and society. Over their long history, the PNAA has accomplished their goals. With events such as the Annual Convention, they continue to make an enormous contribution to American healthcare excellence. Musillo Unkenholt congratulates the PNAA on another successful year.