PRESIDENT OBAMA COULD EXPAND H-1B AND DOUBLE GREEN CARDS WITHIN THE NEXT TWO MONTHS

This November or December the President may expand the H-1B rules and double the number of employment-based green cards, through Executive Action.  Either would be welcome to an American industry that cannot find US workers in low supply occupations such as healthcare and information technology.  The Executive Action will happen between the November 4, 2014 and January 3, 2015.

Earlier this month the President hinted that he will use Executive Action to liberalize the H-1B program.  One method may be to finally enact rules that extend work authorization to spouses of H-1B workers.

Pundits have also said that the President could effectively double the number of employment-based green cards by changing the way that employment-based green card are counted.  Doubling the number of employment-based green cards would make most employment-based green card categories current, eliminating retrogression.

The Executive Action doctrine allows Presidents to implement changes to the law, as long as those changes are interpretations of established law and not the creation of new law.  There is a fine line between an interpretation and the creation of law.

The President controversially took Executive Action in June 2012 when he issued the Deferred Action for Childhood Arrivals (DACA).  DACA allows certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal.

The President originally planned to use Executive Action this summer in other areas of immigration law.  He has postponed those plans until after Election Day in order to appease Democrats in tough districts. 

It is expected that the House of Representatives will remain firmly in control of the Republicans.  The Senate, which is presently in control of the Democrats, will almost surely flip to Republican control.  This will give the Republicans control of both houses of Congress when the new Congress starts on January 3, 2015.  For this reason, the President is expected to act before the new Congress is sworn into office.

USCIS UNHELPFUL ON EB-2s FOR PHYSICAL THERAPISTS

The October 9, 2014 USCIS Headquarters Question and Answer session with AILA included a lengthy discussion on the issue of EB-2s for Physical Therapists.  The discussion was unhelpful and did nothing to make progress son this issue. 

This issue is that the USCIS refuses to acknowledge that the five year, 150+ credits Philippine degree is equal to a US Master’s Degree in spite of incredible evidence.  The USCIS’ refusal to do so means that Philippine Physical Therapists must file for an EB-3.  We have blogged on this topic in great detail.

This recent USCIS Q&A shows the USCIS’ obtuseness on the issue.  Instead of articulating a common standard, the USCIS says,

Rather than make a blanket statement regarding the merits of degrees evaluated by the FCCPT to be the equivalent of a first professional degree in physical therapy in the United States, USCIS will analyze the educational credentials of foreign workers practicing physical therapy on a case by case basis with due consideration being given to all submitted materials as well as to other credible resource material.

“Case by case basis” is legal code for “we have no standard.”  It simply is not that difficult analysis.

VISA BULLETIN PROJECTIONS FOR THE NEXT FEW MONTHS

AILA has again recently dialoged with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin.  MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

Here are his projections based on his recent conversation with AILA:

EB-2 India

The November 2014 Visa Bulletin retrogressed India EB-2 to February 2005, which was 4 years worse than the October 2014 Visa Bulletin.  Unfortunately, the India EB-2 date is expected to stay in 2005 for the foreseeable future.

EB-3 India

This category should see continued slow movement of about one or two weeks for every Visa Bulletin.

EB-3 Philippines

The EB-3 Philippine’s date is expected to remain the same as the Worldwide EB-3 date for the next several months.  These dates will remain the same unless the demand for the Philippines EB-3 spikes in future months.

EB-2 China

This category should progress three to five weeks for every monthly Visa Bulletin.

EB-3 China

EB-3 China should see rapid promotion of dates in the forthcoming months.

FCCPT PILOTING EXPEDITED SERVICE

The Foreign Credentialing Commission on Physical Therapy is launching a pilot program, offering expedited completion of reviews.  The Expedited Service program guarantees completion within six weeks.  The reviews have traditionally taken eight weeks.  An Expedited Service can be requested at any time prior to the start of a review and up to two weeks after the start of the review.

NOVEMBER 2014 VISA BULLETIN

The Department of State has just released the November 2014 Visa Bulletin.  This is the second Visa Bulletin of the 2015 US Fiscal Year, which began October 1, 2014.  

The Philippines EB-3 yet has again had a substantial progression.  It is now at June 2012, which is a five year jump since March 2014.  It remains consistent with the All Other (ROW) EB-3 date.

India EB-2 had a dramatic retrogression, moving from May 2009 all the way back to February 2005.  India EB-3 remains stuck in November 2003.

The Chinese EB-3 number continued to move dramatically and inconsistently.  It is now at January 2010 and is more favorable than China EB-3.

The Visa Bulletin also included this projection:

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second: 

Worldwide: Current
China:        Three to five weeks
India:         No forward movement

Employment Third:

Worldwide: Continued rapid forward movement for the next several months. After such rapid advance of the cut-off date applicant demand for number use, particularly for adjustment of status cases, is expected to increase significantly. Once such demand begins to materialize at a greater rate it will impact this cut-off date situation. 

China:       Rapid forward movement. Such movement is likely to result in increased demand which may require "corrective" action possibly as early as February.

India:        Little if any movement
Mexico:      Will remain at the worldwide date
Philippines: Will remain at the worldwide date. Increased demand may require "corrective" action at some point later in the fiscal year. 

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	08DEC09	15FEB05	C	C
3rd	01JUN12	01JAN10	22NOV03	01JUN12	01JUN12

FSBPT ELIMINATING DISTINCTION BETWEEN GENERAL EDUCATION AND PROFESSIONAL EDUCATION

Starting November 1, 2014, the Federation of State Boards of Physical Therapy (FSBPT) will eliminate the distinction between General Education and Professional Education.  This is a modification of the Interpretive Guidelines for the FSBPT Coursework Tool (CWT).

The Coursework Tool accepted by all member boards to evaluate whether a foreign educated PT or PTA’s education is substantially equivalent to a US PT or PTA education.

FSBPT’s Board issued a comprehensive notice letting the public know that the Board “did not approve this change lightly”.  The Board explained that the elimination of the distinction had been considered for several years and had been recommended by the FSBPT’s Foreign Educated Standards Committee.  Notably, within US education and within the criteria developed by the Commission on Accreditation in Physical Therapy Education (CAPTE), there is no such term as general education.  The new policy does not to eliminate the required courses within General Education, but it does eliminate the artificial distinction between Professional Education and General Education.

For foreign-educated PTs, this change could be helpful.  Presently the CWT requires 150 total credits, which is comparable to what is needed for a US post-graduate degree.  In many international PT programs these general courses are embedded into the PT professional courses, not completed ahead of entry. The current model would not allow the evaluator to give credit as a general course since it was taken as part of their professional coursework.

Previously, some foreign-educated PTs education was found to be incomparable to a US-educated because of the distinction between Professional Education and General Education.  This resulted in some foreign-educated PTs having to take “make-up” classes, usually from CLEP.  As the Board correctly points out, “to ask an applicant to complete a prerequisite after completing professional curriculum seems counterintuitive, and sets up an unreasonable barrier to licensure.”  

AILA AUDIO CLE ON NURSES AND ALLIED HEALTH

The AILA Education Department has scheduled an audio seminar for Thursday, October 9, 2014 @ 2:00 pm (Eastern Time) entitled “Petitions for Nurses and Allied Healthcare Workers.”  MU Law’s Chris Musillo is the Moderator of this audio seminar.  Chris’ co-speakers are with Tiffany Baldwin and Carl Shusterman.

The audio seminar will include these topics:

• H-1B for Nurses: 2002 and 2014 USCIS Memorandum
• Using Schedule A for Nurses and Physical Therapists
• EB-2 Consideration for Healthcare Worker
• USCIS Reliance on the EDGE Database in Evaluation of Foreign Education
• The Role of State Licensing and Credentialing in H-1B and PERM Cases
• Drafting Immigrant Visa Applications for Roving Healthcare Workers
• Visa Screen: Who Needs It and Why?

The panel has reserved 30 minutes for Questions and Answers at the conclusion of the presentation.

MASSACHUSETTS PUTS OUT THE WELCOME MAT FOR H-1B WORKERS

The State of Massachusetts has hit upon an ingenious plan to widen the path for H-1B workers and employers, as reported by CNN/Money.  By using the H-1B “concurrent” employer program and coupling it with the H-1B “cap exemption” for Universities, Massachusetts will help foreign entrepreneurs obtain H-1B visas to work in Massachusetts.

The plan appears to work like this: the Massachusetts Technology Collaborative will vet prospective H-1B entrepreneurs.  When an innovative entrepreneur is identified, the Collaborative will find a Massachusetts University to sponsor the H-1B worker under the “cap exemption” rule.  This rule says that an H-1B worker who is sponsored by a University is not subject to the H-1B lottery. 

Because there is no set required number of hours that the H-1B worker must be employed at the University, the expectation is that the H-1B worker will only work 8-10 hours per week at the University. 

Presumably, the H-1B start-up will then sponsor the H-1B worker for a “concurrent” H-1B visa.  The H-1B employee will spend the rest of the work-week employed by the start-up. 

Without the assistance of the University, the plan would not work because the start-up’s H-1B sponsorship would normally be subject to the H-1B lottery.  The plan is an elegant and creative one to deal with an outdated H-1B cap.

There is no reason that Massachusetts has to limit this plan to entrepreneurs.  It could also be used to help fill critically short healthcare occupations.