INDIAN NATIONALS MAY AVOID VISA INTERVIEW

The US Embassy-India has begun a program where H-1B renewal applicants in India no longer need to attend a visa interview for their H-1B visa extension.  This waiver of the interview process is a welcome relief for Indian nationals who increasingly have had difficulty extending US H-1B visas.

The new program allows repeat travelers who are extending their H-1Bs to avoid the visa interview if the prior visa is in the same classification with the same petitioner and is still valid or expired within the last 12 months.

Applicants for this visa interview waiver programs may apply on the US Embassy – New Delhi website.

Applicants must meet these criteria:

If you can answer “yes” to the following questions, you qualify for the Interview Waiver Program “Dropbox” at one of the 11 service centers.

·         I received my visa after November 1, 2008
·         I have a previous U.S. visa in the same class as the visa for which I wish to renew
·         My previous visa was issued in India
·         My most recent visa (in the same visa class for which I am applying) was issued on or after my 14th birthday
·         I have no refusals for a visa in any category after my most recent visa issuance
·         If I am applying for a B1/B2, C1D, F, or J visa, my prior visa in the same classification is still valid or expired within the last 48 months
·         If I am applying for an H or L (individual) visa, my prior visa in the same classification with the same petitioner is still valid or expired within the last 12 months. Note: L (Blanket) visa does not qualify.
·         My prior visa is not annotated “Clearance Received”
·         My most recent visa (in the same visa class for which I am applying) was not lost or stolen

The webpage contains this Note: Using the interview waiver or drop box service does not guarantee visa issuance. In some cases, you may be required to appear for a visa interview at the U.S. Embassy/Consulate, for example, if you submit an incomplete and/or inaccurate application. Submit your application well in advance of your planned travel to allow for the possibility that a visa interview will be necessary.

Other visa categories may also apply for the waiver of an interview:

·         Business/Tourism (B1 and/or B2);
·         Dependent (J2, H4, L2)
·         Transit (C) and/or Crew Member (D) - including C1/D.
·         Children applying before their 7th birthday traveling on any visa class
·         Applicants applying on or after their 80th birthday traveling on any visa class
·         Children applying before their 14th birthday traveling on any visa class
·         Students returning to attend the same school and same program
·         Temporary workers on Individual L1-A or Individual L1-B visas

NFAP TELLS CONGRESS: GROW NUMBER OF HEALTHCARE VISAS

On the heels of Congressional leaders announcing that they are considering Comprehensive Immigration Reform that could increase the number of employment-based visas, the National Foundation for American Policy (NFAP) has just released a 27 page detailed Report, "U.S. Government , Heal Thyself : Immigration Restrictions and America’s Growing Healthcare Needs".  The NFAP Report's recommendations include:

1)   Expand the number of employment-based green cards so the wait times for skilled immigrants, including nurses, physicians, and physical/occupational therapists, can be measured in weeks or  months,  rather than in years or decades.

2)   Establish a temporary visa that facilitates the entry of foreign nurses. Current temporary visas do not work for the vast majority of foreign nurses and their potential employers.

3)   To aid patients in under-served areas and enable more U.S.-trained doctors to pursue specialized medical fields expand the Conrad 30 program to include many more physicians per state and in the country as a whole. Also, we should consider policies to overcome the limitations on medical residency slots in the U.S. by developing guidelines to allow foreign-trained doctors to practice in the United States if they can demonstrate  a  high  level  of  expertise.  Congress  logically  should  include  physicians  and  medical researchers  in  biology  and  chemistry  in  the  definition  of  Science  Technology   Engineering   and Mathematics (STEM) for exemption from employment-based green card quotas in future legislation.

4)   Streamline  state  licensing  and  other  procedures  for  foreign  medical  personnel,  including  physical therapists and occupational therapists, to help with the nation’s long-term health needs.

The report makes a compelling argument.  It explains how staffing shortages lead to dire consequences for US patients and how these staffing shortages are not being served by US workers.  These staffing shortages will remain for the foreseeable future, given greater demand for smaller nurse-patient ratios, a paucity of instructors, the graying of the existing workforce, and other institutional factors.

The Report details the present visa options and the failure of these options to satisfy healthcare staffing needs.  The failures of the H-1B, TN, and current green card programs to adequately address these staffing shortages are fully explained in the NFAP Report. (One quibble: the Report lists the H-1C visa as "reauthorized", which it was; it subsequently expired in 2009, thus taking yet another option off of the table.)

The Report is chock full of data and should be required reading for anyone in the industry and ought to be on the desk of any Congressional staff who are looking to establish policy initiatives aimed at a significant gap in the current US immigration policy. 

CONGRESS TO CONSIDER CIR (ASAP?)

With the election cycle over for at least a little while, it is now time for each party to see what worked and what didn't work in the just-passed election cycle.  And it's pretty clear that the Democrats immigration-friendly policy was a winner and the anti-immigration rhetoric from the Republicans was not.

As we asked last week: Now What?  The answer is that the Republicans have done an immediate 180 degree turn.  Already Sen. Graham (R-SC) has announced that he will work with Sen. Schumer (D-NY) to revisit their shelved 2010 Comprehensive Immigration Reform (CIR) bill, which was torpedoed when the Democrats moved ahead with their healthcare initiatives, driving the Republicans into their do-nothing mode.  

Now?  H-1Bs, Green cards, STEM occupations all may be in play.

Back in 2010, the bill was called CIR ASAP (Comprehensive Immigration Reform for America's Sceurity and Prosperity). The CIR ASAP bill had these characteristics:

- Recapture of all Immigrant Visas (Family & Employment) from 1992-2008.

- STEM occupations exempt from the Immigrant Visa numbers.

- Immediate relatives exempt from Immigrant Visas quotas (this could be enormous and would be responsible for slicing the immigrant visa retrogression backlogs);

- Increases the per country visa cap, thus ameliorating the Indian, Chinese, and Mexican retrogressions;

- Spouses and Children of LPRs are Immediate Relatives and therefore IV quota-free;

- Employers have affirmative obligation to report recruiters working on their behalf and can be held liable for the crimes of the recruiter;

- Before an employer can hire an H-1B worker, the employer must meet strict requirements for the recruitment of American workers. This would also likely help Healthcare Petitions since the Healthcare staffing shortages are well-documented.

DECEMBER 2012 VISA BULLETIN

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

Overall, the news was disappointing.  India EB-2 remained at September 1, 2004.  MU Law expects the India EB-2 number to move forward, although we are surprised that the progression did not happen with this Visa Bulletin.  The Philippine EB-3 date was equally disappointing, progressing by only one week.

On the bright side, the All Other and Philippine EB-2 date remained Current.  We expect this number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

December 2012 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	22OCT07	01SEP04	Current
EB-3	22DEC06	01JUL06	01NOV02	15AUG06

NOW WHAT?

President Obama has been re-elected for a second four year term.  The Senate and House of Representatives largely have been kept in tact  As usual, immigration reform is expected to be hotly debated.  Republicans may be willing to cede from their traditional anti-immigration positions, in light of post-election analysis saying that their position is really hurting them with the Latino vote.  It was President George W. Bush's relative success with the immigrant community that propelled him to his two victories.

The obvious place to start would be with employment-based immigration, specifically with immigration for workers in occupational zones that are unfilled by American labor.  Professional nurses and Physical Therapists have been listed on the Department of Labor's Schedule A since 1980.  Schedule A is limited to those occupations that the Department has "determined there are not sufficient United States workers who are able, willing, qualified, and available for the occupations."  

In spite of this obvious shortage, it still takes Physical Therapists several years to obtain US green cards.  For nurses, it's much, much worse.  A fully qualified nurse who has passed an English fluency examination and the relevant state's licensing examination must wait approximately seven years to obtain the green card.  If the nurse is Indian, the wait is ten years. This is ridiculous.

The President ought to be able to get the votes to end these delays, which hurt US patients and make intending immigrants question America's desire for their badly needed talent.

EB-2 FOR PHYSICAL THERAPISTS

As we have blogged about in the past, the USCIS' inconsistently adjudicates EB-2 petitions for Physical Therapists.   The law is straightforward. If the position requires an Advanced Degree, then EB-2 Petition should be approved. An Advanced Degree is a US Master’s Degree, the foreign equivalent of a US Master Degree, or a Bachelors Degree and five years of progressive work experience.

If the FCCPT or another credible educational evaluator finds that the Beneficiary’s foreign education is equal to a US Masters Degree, then the EB-2 Petition should be approved, since all US employers effectively require an Advanced degree as their minimum requirement for entry into the petition.

The USCIS recently addressed the applicability of FCCPT educational evaluations:

Response: USCIS considers FCCPT evaluations. However, these evaluations are not binding on USCIS. USCIS will continue adjudicating these filings on a case by case basis. Whether the physical therapists are indeed eligible for EB-2 classification depends on the individual facts of each case. 

MU Law has been working with AILA on this issue for about one year, helping AILA frame the issue for the USCIS.  While the specific language of this Reply is less than ideal, we’re optimistic that the USCIS is beginning to understand the value and credibility of an FCCPT evaluation.  We expect to see more favorable evaluations for properly prepared I-140 EB2 Petitions in the future.