THE BLOG IS SEVEN

A little self-indulgence today.  I'm taking a brief time-out from the usual updates on healthcare immigration to note that this blog is seven years old.  The first blog post was on March 27, 2006 with my prior law firm.  At that time few immigration law blogs existed.  The idea of a blog with such a narrow focus seemed a little naive, but thanks to a regular readership the blog has thrived.  

In November 2007 Sam at ILW.com asked if I would like to syndicate my blog through ILW.com, which I immediately agreed to do. Readership doubled.   ILW.com has been a leader in immigration law information and a great supporter.  ILW.com now houses about a dozen blogs.  This one was the second.

The blog regularly attracts 10,000 monthly page views, sometimes doubling or tripling that number.  The current iteration of the blog (since 2009) has attracted about a half million page views, which is a number that I never would have thought was possible in March 2006.  

The best part about the blog has been the people that have connected with me through the blog.  I've been in Senate staff meetings and had their senior staff tell me that were regular readers.  AILA's Annual Conference is always a fun time because there are always a few attendees who read my name tag and tell me that they are regular readers.  Readers are always commenting. They are the blog's lifeblood. 

Thanks to all of you for your kind words and input.

The blog is accessible through a number of channels.  I hope that you will keep reading and commenting.

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AHCA OUTLINES PRINCIPLES FOR IMMIGRATION REFORM

The American Health Care Association (AHCA) outlined its core principles for immigration reform in a March 12, 2013 Press Release. 

The AHCA recommends that these principles shape immigration reform:

1.       Let business and industry play a leading role. The long term and post-acute care profession is one of the largest job creators in the country and is willing and able to help drive solutions with Congress. Members of the long term care community employ immigrants and boost the economy. Any visa program must give employers, not the government, the primary say in which workers they need to staff their businesses. In addition, the labor market should also have the primary say in how many workers enter the country annually in a legal program.

2.       Create a viable guest worker program that would accommodate the needs of U.S. healthcare providers. The Health Resources and Services Administration (HRSA) projects that, absent aggressive intervention, the supply of nurses in America will fall 36 percent (more than 1 million nurses) below requirements by the year 2020.  AHCA urges the inclusion of allowing employers access to previously unused H-1B temporary work visas for nurses and physical therapists. 

3.       Waive the cap on employment-based visas for nurses and physical therapists, speech therapists and those providing other therapies. The current temporary and permanent visa programs are insufficient and inadequate to accommodate the needs of U.S. health care providers. The permanent residence program provides approximately 5,000 annual visas for essential workers. Clearly, current programs cannot handle our continuing need for foreign-born, essential caregivers.

CIR BILL COMING IN APRIL

MU Law has just returned from Washington DC where we, along with a group of about ten stakeholders, met with close to twenty Senators to discuss how healthcare immigration might fit into the forthcoming Senate  Comprehensive Immigration Bill.  The discussions were largely productive with most Senator's staffs in favor of the bill.  The consensus on The Hill is that the Senate's version of CIR is in the final stages of drafting and should be released in early to mid-April.

The particulars of the Senate CIR bill are still under lock and key.  The most controversial pieces of the bill have not yet been finalized.  One of the most difficult discussion is on a Guest Worker program.  Most Senators believe that for a Comprehensive Immigration bill to be successful it must contain a way for US employers to sponsor foreign workers who do not fit into the H-1B category.  The debate centers on where to draw the line.  Depending on where the line is drawn a Guest Worker program could qualify a range of healthcare workers for Guest Worker sponsorship.

If the Senate can reach an agreement and a bill is released, the focus will turn to the House of Representatives.  The House has its own group working on a bill.  The conventional wisdom seems to be that the House will take the Senate's bill and then work on a similar but not identical bill.  If the House can pass a similar CIR bill, then a Conference Committee will be formed.  

The Conference Committee will consist of members of both the Senate and House.  Their goal is to remedy inconsistencies between the two bills.  If that Conference Committee can reach an agreement, the bill will pass both chambers of Congress and presented to President Obama.  The President is expected to sign into law any reasonable bill that is presented to him.

H-1B CAP TO BE REACHED ON DAY ONE

In a March 15, 2013 press release, the USCIS announced, “based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013.”

Any H-1B cap–subject petition that is filed between April 1 and April 5 is treated as a first-day filing.  In accord with this information, MU Law strongly urges all clients to be prepared to file their H-1B cap-subject petitions ASAP. 

MU Law clients are reminded that all H-1B petitions must include a certified Department of Labor - Labor Condition Application (LCA).  The LCA takes 8 days to be certified, and so any H-1B cap-subject petition that is not initiated at our office by March 24, 2013 will not accepted in this year’s H-1B cap.

If the USCIS is correct and more than the 65,000 H-1B cap-subject petitions are reached on the first day, the USCIS will hold a lottery and return any H-1B petitions that are not lottery ‘winners’.  The USCIS will also refund the entire H-1B filing fee.

H-1B cap-subject 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-1B petitions that are not subject to the H-1B cap include:
* H-1B extension petitions
* H-1B transfer petitions
* Certain H-1B petitioners for University employers
* Certain H-1B petitions for Non-Profit Research organizations

APRIL 2013 VISA BULLETIN

The Department of State has just released the April 2013 Visa Bulletin.  This Visa Bulletin shows minor progress from last month's Visa Bulletin.

Overall, the news remains disappointing.  India EB-2 remained at September 1, 2004 for the sixth month.  The Philippine EB-3 date was equally disappointing, moving just one week, to September 8, 2006.

On the other hand, All Other and Philippine EB-2 dates remained Current.  The All Other EB-3 jumped continued to steadily progress, improving about eight weeks. 

The Chinese Visa dates each moved two months.

 As MU Law mentioned earlier, we expect the Philippine EB-2 number to remain Current or near Current until Spring/Summer 2013, when it should become unavailable as it does most Summers.

April 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	1APR08	01SEP04	Current
EB-3	01JUL07	22APR07	08DEC02	08SEP06

H-1B CAP OPENS APRIL 1

The Fiscal Year 2014 (FY2014) H-1B cap season will begin on April 1, 2013. Last year (FY2013), the H-1B cap moved quite quickly. The H-1B cap was reached in June 2012, about five months faster than the prior year.

From 2009-11, the H-1B cap remained opened for at least one-half the year.  For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

It is unknown what the FY2014 H-1B demand will be. After speaking with clients and other immigration attorney-friends, MU Law expects that the H-1B cap will move quicker than last year, and will be reached in April.

If you are considering filing an H-1B cap-subject petition, MU Law urges you to begin that process now.

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

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 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-1B BENCHING FIRM INDICTED

A Texas IT services firm, Dibon Solutions, has just been indicted by federal authorities, who allege that Dibon unlawfully benched H-1B employees, reports Computerworld.   Six Dibon Solutions employees have been arrested.

Dibon's business model, which is permissible for US workers, is impermissible for H-1B workers.  The model called for Dibon to place H-1B employees at third-party client worksites, as those third-party clients needed IT services.  When there was no client work, Dibon benched the employees and did not pay the H-1B workers the requisite H-1B wage, which is the alleged illegal act.   

The U.S. Department of Labor requires that H-1B employers pay H-1B workers their full H-1B wage, even if the H-1B worker is not working.  The H-1B employer has the option of terminating the H-1B worker, which dissolves he H-1B employer's wage obligation.  However, if the H-1B employer wishes to re-hire the terminated H-1B employee, the H-1B employer must file a new H-1B petition with the USCIS and may be required to file a new Labor Condition Application with the DOL. 

Computerworld's Patrick Thibodeau notes that the last headline-grabbing H-1B visa fraud case involved Vision Systems Group in 2011.  The Vision Systems Group case alleged $7.1 million in violations, but the USCIS quietly settled for $236,250.  It remains to be seen if the Dibon Solutions case will mirror Vison Systems Group or result in more serious penalties.  The fact that six employees have been arrested certainly means that the US believes that these charges are serious.