THE US IS RUNNING OUT OF NURSES

The Atlantic has a longform article detailing the current US nursing shortage in which it highlights that 1.2 million nursing positions will be unfilled in the next five years.  While nursing shortages have existed in the US for most of the last forty years, this one is going to be different.  The US nurse supply has been artificially inflated since the start of the recession.  Now that the recession has abated, nurse retirement numbers are spiking.  Musillo Unkenholt saw more demand for foreign-trained nurses in 2015 than we had in the whole of 2009-14. 

The reasons for the current US nursing shortage are many:

Baby Boom Generation Demand.  The US Baby Boom generation, those born 1946-1964, has reached an age where they will increasingly demand nursing services.  As The Atlantic points out:

Today, there are more Americans over the age of 65 than at any other time in U.S. history. Between 2010 and 2030, the population of senior citizens will increase by 75 percent to 69 million, meaning one in five Americans will be a senior citizen; in 2050, an estimated 88.5 million people in the U.S. will be aged 65 and older.

Aging Nursing Workforce.  Out of the 3 million US nurses, one million are over age 50 and will be expected to retire in the next 10-15 years.

Few Nurse Educators.  Nursing Ph.D. programs have been unable to attract nursing faculty.  These nurses Ph.D’s have traditionally made up large numbers of nursing school faculty.  Part of the reason for this is that a Bachelor nursing graduate is usually offered a job at graduation, thus reducing that graduate’s incentive to seek out graduate nursing education.  Without a dramatic increase in nurse faculty, it will be impossible for the US to supply enough nurses to meet the demand.

Distribution Challenges.  Some of the American nursing problem stems from the lack of mobility ion the nursing force.  Nurses are often unwilling to leave their hometowns for jobs in rural areas or high-nurse demand areas, even if those positions pay better.

Lack of Foreign-Nurses.  Because of a terribly though-out US immigration policy, it takes a nurse from the Philippines many years to legally obtain a visa, in spite of the nursing shortage.  The Philippines has traditionally been the greatest supplier of US nurses.  The story is even worse for India, which would certainly be able to supply the US with many nurses if it did not take 10 years for a fully-qualified nurse to obtain a US visa.  As a result of the lack of US nursing visa options, foreign-trained nurses have declined sitting for the US licensing exams. 

Ten years ago the US congress passed a special EX visa just for occupations that were found to be nationally short by the Department of Labor.  These occupations were placed on the DOL’s Schedule A.  By placing an occupation on Schedule A, the Department of Labor finds that the importation of workers in the occupational classification will not negatively impact existing US labor.

Only two occupations are on Schedule A – Registered Nursing and Physical Therapy.  Does it not stand to reason that there ought to be a better immigration program to allow these badly needed workers entry into the US? 

LOOKING AT THE VISA BULLETIN CRYSTAL BALL

Employment Based Green cards are processed by “priority date” in a FIFO (first-in, first-out) manner.  A nurse’s “priority date” is established on the day that the nurse’s immigrant visa petition is first filed.  A nurse retains her priority for the rest of her life, even if she files a later Green card case with a subsequent employer.

From 2005-2008 the industry saw massive numbers of nursing petitions.  These petitions were fueled by: (a) enormous demand for foreign-trained nurses and (b)a special piece of legislation that exempted nurse green cards from the overall green card quota in 2005-2006.  The special legislation ended in 2007.

Many of these nurses received their green cards and are now working in the US.  However a large number of nurses did not receive their green cards because in 2009 the demand slowed for foreign-trained nurses and because retrogression spiked.

From 2009-13 there was a paucity of nurse immigration petitions.  Starting in 2013 we saw a rebound for foreign-trained nurses.  Industry leaders sought out nurses with priority dates from the 2005-2008, who had never received their US green cards.  Since 2013 the industry has seen thousands of nurse’s green card petitions “re-filed” using the 2005-08 retained priority date.

My sense is that the population of nurses Filipino nurses who can retain their 2005-2008 priority dates are close to exhausted.  Accordingly, I expect that once the Philippine EB-3 priority date Visa Bulletin reaches 2010, it will quickly accelerate through to at least 2013 and perhaps to 2015.

Nurses born in countries other than India, China, or the Philippines (Rest Of World) have no visa retrogression problem.  Green cards are being issued for these nurses in under one year, as demand for the Worldwide nurses has yet to impact the Visa Bulletin.  Because of the calculus involved in the Visa Bulletin computation, I expect the ROW EB-3 Visa Bulletin to be near “current” for the foreseeable future.

DOS PROJECTS FORWARD MOVEMENT IN APRIL 2016 VISA BULLETIN

In the most recent Visa Bulletin, for March 2016, the Department of State made projections for potential monthly movement in all categories.   Notably the DOS projects forward movement in all Employment-based categories for the April 2016 Visa Bulletin.

Here are the DOS projections.  They have included a standard disclaimer, which we have included at the end of the excerpt.

EMPLOYMENT-based categories (potential monthly movement)

Employment First:  Current

Employment Second:

Worldwide: Current

China: Up to five months.

India: Up to three months.

Employment Third:

Worldwide: The rapid forward movement of this cut-off date during the past ten months should generate a significant amount of demand for numbers. When such demand begins to materialize it will be necessary to limit movement of this cut-off date.

China: Up to five months.

India: Up to one month.

Mexico:      Will remain at the worldwide date.

Philippines: Up to four months.

The above projections for the Family and Employment categories indicate what is likely to happen on a monthly basis through June based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. 

MARCH 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State has just issued the March 2016 Visa Bulletin.  This is the sixth Visa Bulletin of Fiscal Year 2016. 

March 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01AUG12	15OCT08	C	C
3rd	01JAN16	01JUN13	15JUL04	01OCT15	15MAR08

MU Law Analysis

All:  The EB-2 has been current for many years.  The EB-3 remains positive, gaining 10 weeks this month.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 progressed by five months. EB-3 has progressed almost two years in just the last few months.  This is great news for this category.  EB-2 continues to lag behind EB-3.  The DOS expects the EB-2 and EB-3 to re-balance at some point in the future.

India: EB-2 jumped again. Five months ago it was 01MAY05. This represents a three-plus year movement in just five months.  This trend may continue. EB-3 moved four weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to get into 2009 in the by this spring or early summer.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization. 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUN13	01JUL09	C	C
3rd	C	01MAY15	01JUL05	C	01JAN10

MU Law Analysis

The All Other and Chinese dates moved ahead considerably.  The other countries' Dates of Filing chart did not materially change since the start of the Fiscal Year in October 2015. 

DOS ADDRESSES EB-3 PHILS RETROGRESSION

AILA regularly checks in with Charlie Oppenheim, who is the Department of State’s guru on Visa Bulletin numbers.  Their most recent Check In with Charlie contains his projections for several major visa categories.

Notably he discusses the EB-3 Philippines and the rumors that 80% of the 28,000 pending Philippine EB-3 visas will never be used because those applicants have either already immigrated to the US or they have long abandoned their applications.

QUESTION:  Do the numbers reported on the Waiting List for EB-3 Philippines reflect actual visa demand for this category? It has been suggested by some that as many as 80% of the 28,102 individuals listed in the report will not pursue their visa applications as a result of the visa backlog and lack of priority date movement over the years. If in fact actual demand to date has been less than expected, are you considering adjusting the priority date cut-off for this category?

ANSWER:  Number use for EB-3 Philippines is at a fairly reasonable level for this point in the year. We have 5,000+ applicants which have already been reported to VO, and are only awaiting forward movement of the cut-off date. The cut-off date will continue to advance, but how quickly remains to be seen.

The "lag time" does not seem to have resulted in a lack of demand. The reason for the rapid movement of this date in FY 2015 was that we had worked through the eligible demand which was reported for overseas processing, and USCIS demand (approximately 950) was extremely low during the first four months of FY 2015. During the next three months, demand from USCIS exploded (approximately 3,000), perhaps due to a decreasing processing backlog.

Charlie addressed other categories too:

EB-2 India:  The recent aggressive forward movement of EB2 India is the result of less demand in the category than that which was previously anticipated.  But, recent discussions with USCIS have led him to believe that the rate of demand in the coming months will reduce the rate of cut-off date movement.

EB-2 Worldwide:  EB-2 Worldwide demand is low.

EB-2 and EB-3 China:  The EB-2 China Final Action Date will continue to lag behind EB-3 China.  At some point EB2-to-EB-3 “downgrades” may rebalance these categories.  In the meantime, both EB-2 and EB-3 China are expected to continue to advance in March.

H-1B TELECONFERENCE FEB 4, 2016

REMINDER: LAST CHANCE TO REGISTER IF YOU  HAVE NOT DONE SO ALREADY

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2016.

H-1B Teleconference Agenda

• H-1B Cap Basics and Projections

• H-1B Dependency

• H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?

• Hot issues:  
• CPT / OPT maintenance
• NIV maintenance
• Cap-gap for F-1s
• H4 EAD rule
• STEM OPT Lawsuit
• Increased filing fees for 50/50 employers

• Top 10 things H-1B employers can do to stay compliant

• Legislative Update
• DACA/DAPA to the Supreme Court
• I-140 EAD
• Presidential Election: What we can expect from President Trump

• Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.