BREAKING! SENATE PASSES CIR

Today the Senate took the historic step of passing Comprehensive Immigration Reform, Senate bill S. 744.  This is a significant step on the path to the bill becoming law.  It is important to note that nothing has changed with this action.  While we are much closer, we are still quite a ways from any legal change.  The House must act.  The House is more conservative than the Senate. 

S. 744 does many things.  Many of the specifics will change as the House takes action.  Therefore it is much too early for employers to plan for CIR. 

What the House will do is a wide-open question.  The House will likely move slowly.  There are many factions of Republicans who are struggling to reconcile their disparate opinions.  If the Republicans can agree on the House side, then a House CIR bill could pass. 

Even if that happens, there is no guarantee that the senate and House bills can be reconciled.  At this point the odds are 50/50 that we get CIR in 2013, and the odds improved significantly with today’s Senate vote.

MU Law has been to Washington on several occasions in the last 90 days to speak with Congressional staff about employment-based immigration issues.  While no one knows what the final CIR bill will look like, but if CIR passes it will have these characteristics:

Greater H-1B visa numbers.  Current law allows 65,000 new “regular” H-1B visa approvals every fiscal ear and an additional 20,000 for graduates of American Master’s degree programs.  American businesses have regularly asked Congress to raise this H-1B quota.  Congress is hearing the call.  Most potential legislation calls for increased H-1B numbers.

Increased H-1B Enforcement. The trade-off for the greater H-1B numbers is greater enforcement regulation.  All versions of CIR step up funding for H-1B enforcement.

Special Third Party Placement Rules for H-1B Employers. Since January 2012, USCIS has held staffing companies to a higher level of scrutiny. Congress is now going further.  Placing employees at third-party worksites is outright prohibited for some employers and highly regulated in others.  

Abundant Green Card Numbers.  By increasing green card numbers, Congress hopes to incentivize employers and workers to become permanent residents. . This should mean faster green cards and less worrying about quotas.

E-Verify is here to stay.  E-verify is a federal program whereby voluntary employers can check a prospective employee’s work authorization.  Government contractors and some states have made E-verify mandatory.  Congress appears ready to require E-verify for all employers, likely phasing it in over a few years.

Shifting from Family Based Visa Numbers to Merit Based Immigrants.  One part of the CIR plan is that Congress appears to have settled on a merit-based green card.  A merit-based system would allow the Department of Homeland Security to weigh a number of factors, such as education, job prospects, US ties, and English fluency to prioritize an applicant’s visa.  The merit based system will come at the expense of the family categories and will eliminate the visa lottery program.

AILA DINNER

For the last several years a group of AILA lawyers who practice in healthcare have gotten together for a dinner on the Thursday of AILA Annual week. Most years we have about 15 people.  It is a great chance to catch up with old friends (and new ones!). It is a casual event.

If you are an AILA attorney who is interested in attending this year’s dinner, please let me know how many will be attending from your group by June 21. Friends, spouses, etc. are also welcome.

OTED REMINDER: DOCUMENTATION DUE BY JULY 31

The National Board for Certification in Occupational Therapy recently issued a reminder about Occupational Therapy Eligibility Determination (OTED) standards.  The OTED processes applications from non-US trained Occupational Therapists.  The criteria for submitting an OTED application is that the foreign-trained OT must have an educational background that is comparable to a US-entry Occupational Therapist.  This entry standard has been a master’s degree since January 1, 2013.

OTED now reminds applicants that after July 31, 2013 all applications will be closed unless the application includes evidence that a US-equivalent Master’s Degree has been obtained.  Documentary evidence includes:

- Official school transcript

- Official Course Syllabi with descriptions

- Verification of Academic Credential Form

- Program Director Form

- Verification of OT License, Registration, Certification or Other Form of Official Government Recognition Request form

TRIAL STARTS IN ALLEGED NURSE INSTRUCTOR VISA SCHEME

A Colorado trial started this week in which US Attorneys allege that US citizen Kizzy Kalu lured foreign-educated Nurse Instructors to the US to teach at Adam University, a fictional college.  The US Attorney's claim that the Instructors paid Kalu's company, Foreign Heath Care Professionals Group,  and his business partner $6,500 expecting that they would have H-1B visa approval and Instructor positions that paid them $72,000 per year.  When they arrived in the US, FHCPG put them to work at low paying conventional nursing jobs and had to return part of their paycheck to Kalu or risk having their visas revoked.  

Kalu and his partner, Philip Langerham, were first indicted in March 2012.  Mr. Langerham has since reached a plea deal with the US Attorneys office and appears ready to testify against his ex-partner.

Kalu's attorney claims that the proposed jobs were always expected to be supervisory nursing jobs at long-term care facilities.   Supervisory nursing jobs and Nurse Instructor jobs are often permissible under the H-1B visa program.  FHCPG apparently hired a well-regarded immigration attorney to help with the H-1B processing.  According to the Denver Post, Kalu's defense is that the nurses never intended to adhere to their employment contracts and began fabricating stories in order to maintain valid immigration status.

JULY 2013 VISA BULLETIN

The Department of State has just released the July 2013 Visa Bulletin.  This is the first of the three fiscal-year fourth quarter Visa Bulletins.  The US Fiscal Year ends on September 30, 2013.

This Visa Bulletin continue to show steady progress in the EB-3 numbers for All Other and China.  We are now into 2009 for both categories.  

India's EB-3 remained in January 2003. India EB-2 remained frozen at September 2004.  The Philippines EB-3 modestly improved to October 2006.

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.

July 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08AUG08	01SEP04	Current
EB-3	01JAN09	01JAN09	22JAN03	01OCT06

CIR MOVES FORWARD IN SENATE, LATERALLY IN HOUSE

The next steps on Comprehensive Immigration Reform are taking shape.  Whether it can be accomplished by the end of the summer is still an open question.  If CIR fails it will be because it is enormously difficult to get 435 House Representatives and 100 Senators to agree anything.

Senate Majority Leader Harry Reid (D- NV) says that a full Senate vote on CIR (S. 744) is expected to come before the July 4th Congressional recess.

Senator Harry Reid @SenatorReid The immigration debate on the Senate floor starts tomorrow. My goal is finish the process by July 4. youtube.com/watch?v=apMtiW… 02:14 PM - 06 Jun 13

S. 744 will need 60 votes to survive a filibuster.  The odds are better than even that S. 744's proponents can get the 60 votes.  S. 744 stalwart Sen. Rubio seems to be wavering but this may be politics on his part.   While sixty votes would be a victory, sixty-five or seventy would be better.  It would signal broad bipartisan support for S. 744 specifically and CIR generally. 

Once S. 744 is passed all eyes will be on the House.  The House had its own Gang of Eight crafting its own CIR bill.   This Gang of Eight has been downsized to a Magnificent Seven, with Rep. Raul Labrador (R-ID) leaving the posse.  While Rep. Labrador's abdication was not welcome news, the fact that the rest of the Republicans have decided to stay on the job implies that there is still a desire to get a House bill completed this summer. 

Before we can get to the House though it will remain to be seen just how many votes S. 744 can obtain in the Senate.  We should know the answer to this -- and to be better able to handicap the viability of CIR -- by the July 4 Congressional recess. 

FRAUDULENT DOCUMENTS FROM INDIRA GANDHI NATIONAL OPEN UNIVERSITY

The Foreign Credentialing Commission on Physical Therapy is tasked with reviewing the credibility of foreign educated Physical Therapist's transcripts.  A recent News Item on their webpage says that they will require additional documentation before they will approve any transcript from Indira Gandhi National Open University. 

FCCPT has apparently had a recent submission of fraudulent documents claiming schoolwork from this University.  It is unclear if this was an isolated incident or a repeated problem.  Graduates of Indira Gandhi National Open University should expect a delay in the processing of their FCCPT applications.