MU LAW'S OFFICE CLOSING EARLY ON JULY 30

Musillo Unkenholt LLC turned five years old on July 1, 2014!  It would have been impossible to have our five years of success without the hard-effort and talent of our Legal team.  In celebration of our fifth birthday and in recognition of everyone's hard work, we will closing the office at 12 noon (ET) on Wednesday July 30.  We are having a group outing at the Cincinnati Reds baseball game.  If you contact us during the afternoon of July 30, rest assured that we will promptly return your call or email on Thursday.

ANALYSIS OF THE NEW USCIS MEMO ON H-1B FOR RNs

USCIS has just published and released an updated H-1B Memorandum which purports to provide guidance to USCIS officers in their adjudication of H-1B petitions for Registered Nurses.  This Memorandum updates the long-standing 2002 Johnny Williams USCIS Memorandum on the same subject.  The new Memorandum does not break new ground.  It is not expected that the Memorandum will result in a significant increase in approved H-1B petitions, although its Background section helpfully reminds USCIS officers that “there are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation”.

USCIS officers presently deny nearly all H-1B petitions for Registered Nurses, regardless of the specific facts of the petition.  The fundamental problem for RNs seeking H-1B status is that few US Registered Nurse positions in the US require a Bachelor’s degree in Nursing for entry into the position.  In order to have an H-1B approved it is not enough that the applicant holds a Bachelors’ degree; the position itself must require a Bachelor’s degree.  The Memorandum makes this clear: “Registered nurses generally do not qualify for H-1B classification” (Page 2).

Even nurses who work in units where 100% of the nurse workforce holds Bachelors of Science in Nursing (BSN) have seen H-1B denials.  These denial opinions dismiss the employer’s facts, and simply cite to the Occupational Outlook Handbook, which generally says that nursing positions do not require Bachelor’s degrees.

As the Williams Memorandum explained, the new Memorandum confirms, there are exceptions to this general rule.  For instance, the new Memorandum favorably recognizes that hospitals with magnet status, “indicates that the nursing workforce within an institution has attained a number of high standards relating to quality and standards of nursing practice” (Page 3).  The Memorandum then buries in footnote 9 a very important fact: “For example, as of January 1, 2013, 100% of nurse managers of individual units/wards/clinics must have at least a baccalaureate degree in nursing upon submission of the Magnet application.”  This Memorandum would have been improved if the author had plainly stated that Nurse Manager positions at Magnet hospitals qualify for H-1B visas.  Nonetheless, this acknowledgement should be helpful in future H-1B petitions for Magnet Hospital Nurse Managers.

Beyond this section on Magnet hospitals the new Memorandum offers little guidance for USCIS officers.  In several places the Memorandum tells officers to analyze cases on the facts of the petition and on a case by case basis, which is apparent.

The new Memorandum mirrors the Williams Memorandum in that it reminds officers that Advance Practice Nursing position are generally specialty occupations and approvable for H-1B visas.  It also helpfully recognizes that some specialties, such as critical care and peri-operative (operating room) may qualify for the H-1B.

While USCIS HQ missed an opportunity to be clearer about which RN positions were approvable for H-1B visas, the Memorandum shows that the USCIS is aware of the issue.

UPDATE: The USCIS appears to have broken the link to its Memo.  The Memo can be found on our DocStoc site.

FCCPT VERIFICATION OF INDIAN EDUCATION

All foreign-educated Physical Therapists must be issued a Healthcare Worker Certificate prior to receiving a temporary (e.g. H-1B or TN) or permanent visa, as per 8 CFR 212.15(c):.  Two originations are permitted to issue these HWC’s.  CGFNS issues the Visa Screen, which is also issued to qualified Registered Nurses, Occupational Therapists, and several other healthcare occupations.  FCCPT issues the FCCPT Type I Certificate.  The FCCPT Type I is only issued to Physical Therapists. 

The HWC verifies that the foreign educated Physical Therapist has (i) qualifying education, training, licensing, and experience; (ii) passed a qualifying English fluency exam; and (iii) passed the actual licensing exam (NPTE exam). 

The FCCPT recently published an update about their verification of Indian distance education.  At issue is whether the educational experience is post-Secondary education and is not continuing education.  Several criteria are now considered by FCCPT.

-                      Verification that the study center does not violate the jurisdiction territory as outlined by the University Grants Commission (UGC).

-                      Evidence that the study center is not franchised. This means that it cannot be affiliated to more than one university.

-                      Verification that the University is in charge of admissions to the distance education program.  Admissions cannot be done by study centers as per UGC regulation.

-                      That the program is authorized to be offered through distance education by the Distance Education Council (DEC). Even though the DEC has been disbanded by the UGC, the regulations stay in effect until the UGC publishes new standards.

H-1B FOR NURSE EDUCATORS

To qualify for an H-1B, the position must require and the employee must hold a bachelor’s degree or greater.  As a result, most nursing positions do not qualify for H-1B as a BSN is not typically required for a floor nurse position.  Nurses who are eligible for an H-1B include: a nurse educators, nurse managers, or specialty nurses where the position requires a higher level of education.

Earlier in the year, MU Law received a denial in a case for a Nurse Educator position.  The USCIS denied the petition, holding the position did not require a bachelor’s degree or greater – a requirement for H-1B status. 

After the denial, we appealed the case to the Administrative Appeals Office (AAO), which is the body that reviews appealed USCIS Service Center decisions.  We believed and argued that the evidence shows that the preferred credential for teaching in the academic setting is the doctoral degree.  At a minimum, nurse educators at colleges and universities must hold a master’s degree in nursing and have additional training in the science of teaching.

We have recently received word that our appeal was successful. MU successfully argued that the position of Nurse Educator requires a master’s or doctoral degree and so therefore not only meets, but exceeds, the H-1B requirements.  The appeal was sustained and the H-1B is now approved.

A nursing shortage in United States is expected to continue in  the coming years, as the US economy continues to recover and older nurses begin retiring.  This will only make the need for qualified nursing faculty more critical and the H-1B a viable option for schools looking to hire nursing faculty.

H-4 EAD COMMENT PERIOD HAS ENDED

Earlier this year the USCIS proposed a rule that, if enacted will allow H-4 spouses to file for work authorization.  The rule, if passed as drafted, will allow H-4 spouses of H-1B holders to obtain EAD employment authorization.

Under the law, when a new rule such as this is proposed, the USCIS must give the public 60 days to comment on the proposed rule.  That comment period ended on Friday July 11.  The USCIS will now sort through the comments.  Computerworld notes that adoption of the proposed rule is “all but assured.”  The timing of the “assured” approval is unknown at this time.

The Computerworld article has an interesting discussion about the types of comments that have been received and how an automated tool can mine the comments for trends.  For instance, out of 6,035 non-unique comments, “453 were exact duplicates of 10 different comments.”

AUGUST 2014 VISA BULLETIN

The Department of State has just released the August 2014 Visa Bulletin.  This is the eleventh Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The Philippines EB-3 jumped again.  It is now at June 2010, which is a three year jump in the last three months.

India EB-2 also moved forward.  It progressed to January 2009.

The Chinese EB-3 number continued to move dramatically and inconsistently.  It is now at November 2008.  

The All Other EB-3 held steady as well.  It remains at April 2011.  Our sense is that it will not progress until the next US fiscal year.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08OCT09	22JAN09	C	C
3rd	01APR11	01NOV08	08NOV03	01APR11	01JUN10

PNAA ANNUAL CONVENTION

The Philippine Nurses Association of America just held its 35th Annual Convention.  This year's Convention was held in Las Vegas, NV.  MU Law was proud to be a featured sponsor of the event, as we have for the last five years.  

Check out the MU Law Facebook page to see pictures from this year's event.

We encourage Philippine nurses to explore this great organization.  

FIVE YEARS AS MU LAW

Today marks the five year anniversary of the Musillo Unkenholt LLC law firm. We are proud of the work that we have done here on behalf of our many clients.   The "unsung" heroes of the firm are our experienced paralegal team, many who have been with us for the entire five years.  Thanks to everyone for all your support over these five years!