ANOTHER COURT LIMITS DOL’s AUTHORITY TO INVESTIGATE H-1 EMPLOYERS

The Greater Missouri case has been winding its way through the courts for ten years.  The case significantly limits the scope of the DOL’s authority to investigate H-1B employers, but was limited to certain Midwest states.  A decision issued last week, Volt Management, means that the opinion in Greater Missouri could be applied nationally.

Traditionally the DOL has used any allegation of H-1B or LCA violations as probable cause to investigate an H-1B employer’s entire H-1B program.  In Greater Missouri, the Eight Federal Circuit Court of Appeals held that the DOL’s investigative authority solely was limited to the allegation.  In other words, if one H-1B employee filed a complaint with the DOL, the DOL could only investigate any violations against that one H-1B employee.  The DOL cannot, under Greater Missouri, investigate the employer’s entire H-1B program.

The Greater Missouri decision, however, was limited to matters within the Eight Federal Circuit, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.  In Volt Management, BALCA held that:

Because the case at hand arose in the Ninth Circuit, I am not bound by the Eight Circuit’s decision in Greater Missouri. But having been reversed, ARB’s decision in Greater Missouri is not binding either. The ARB has had no occasion yet to revisit the issues raised in Greater Missouri in light of the change in the law—the Eighth Circuit’s holding. Until the issue is again reviewed by the ARB, it remains an open question whether a single aggrieved party complaint justifies a broad investigation into whether an employer violated the INA with respect to other H1B employees. I follow the Eighth Circuit’s reasoning.

DINNER AT AILA

Are you an immigration attorney who is going to the AILA Annual Conference in Las Vegas next week?  If so, and if you do not have plans on Thursday evening, please join us for 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 attend. 

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 17. Friends, spouses, etc. are also welcome.

JULY 2016 VISA BULLETIN

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

July 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	01JAN10	01NOV04	C	C
3rd	01MAR16	01JAN10	22OCT04	01MAR16	15FEB09

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 moved forward by two weeks.  These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: Both Chinese categories remained at January 2010.  A note in this month's Visa Bulletin indicates that these dates will stay at January 2010 for August and September 2010's Visa Bulletin.

India:  EB-3 moved ahead one month.  But the EB-2 remained stuck in 2004.  We expect the India EB-2 to stay in 2004 until the October 2016 Visa Bulletin at which time it should steadily move forward.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead three more months. The note in this month's Visa Bulletin indicated that the EB-3 date should move through 2009 and may move into 2010 by September, as MU Law has been expecting.  (Our note from May 2016: "MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months. We expect it to move into 2009 in the by early summer, and may reach 2010 by the end of this fiscal year.")

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

These dates did not change from the prior Visa Bulletin. 

FSBPT RAISING PT EDUCATION STANDARDS

The evolution of Physical Therapy educational continues.  The profession had long been governed by a Bachelors degree standard until the late 1990s when universities raised their first degree to a master’s degree.  State licensing boards and the FCCPT followed and by the early 2000s the minimum entry degree into the profession was officially a master’s degree.  In the early part of the decade the minimum educational standard evolved again.  It is now a Doctorate of Physical Therapy (DPT).

In concert with the evolution, FCCPT is also evolving their Course Work Tool to their sixth updated version (CWT-6).   The CWT-6 is the tool by which educational evaluators equate foreign-educated Physical Therapists.

From the FCCPT May 2016 News Brief:

The FSBPT Coursework Tool is used by credential review agencies to determine if a non-CAPTE educated PT’s education is substantially equivalent to a CAPTE-educated PT. The CWT was revised to reflect the new CAPTE standards for PT and PTA programs taking effect January 1, 2017. Changes in the CWT 6 include an increase in total credits required from 150 to 170 credits and an increase in clinical hours from a minimum of 800 to 900 hours.

Post-graduate work will be considered in the evaluation.  Again from their May 2016 News Brief:

Based on the Framework, the CWT 6 Guidelines for Interpretation will be revised to allow credential review agencies to consider clinical, direct patient care, work experience that meets certain criteria towards the CWT 6 required 900 clinical education hours. There are a number of parameters and limitations included in the Framework to ensure that the practice experience meets a minimal level of quality. Post-graduate clinical experience hours requirements for physical therapists:

1. Completed an average of at least 20 hours per week for a minimum of 1,000 hours.

2. Completed 1,000 hours in direct patient care.

3. Completed the hours within the most recent three years preceding the application.

4. Completed the hours within a hospital, rehabilitation center, or other facility that employed a minimum staff of at least three (including the applicant) practicing PTs during the applicant’s clinical experience hours. Federation of State Boards of Physical Therapy Page 3

5. PTs employed at the facility with the applicant must have been available for consultation.

6. At least one of the PTs employed at the facility with the applicant must have at least two years experience practicing as a PT.

7. Verification that the applicant was eligible to practice in the country in which the experience was completed.

8. Verification that the applicant has had no disciplinary action against any professional license held for at least two years.

9. Notarized verification of the work experience provided by a supervisor such as the department head of the physical therapy practice or the director/head of the facility

Additionally, any university externship conducted under the supervision of a university PT program, credentialed residency or fellowship would be an acceptable option to meet a deficit of clinical education hours. These are rarely available, especially outside of the US, but are an acceptable option. Typically, within the US, a participant in a residency/fellowship must be licensed and due to the licensure requirement, a US residency/fellowship would most likely be unavailable.

H-1B SERIES PART THREE: WHEN DOES THE H-1B EMPLOYER’S WAGE OBLIGATION END ?

H-1B SERIES PART THREE: WHEN DOES THE H-1B EMPLOYER’S WAGE OBLIGATION END ?

An H-1B employer’s wage obligation when it effects a bona-fide termination.  The employer must take three steps to effect a bona-fide termination.  Once all three steps are taken, the employer is said to have made the bona-fide termination: (1) The H-1B employer expressly terminated the employment relationship with the H-1B worker; (2) It notified USCIS of the termination so that the petition could be cancelled; and (3) It offers to pay or reimburse the worker for the reasonable cost of return transportation to his or her home country.  This three step test is taken from Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006). 

The Dedios court pointed out that there are some very limited exceptions to the three step test outlined in Amtel Group.  The exceptions are found in cases such as: Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ No. 2011-LCA-025 (ARB July 16, 2014): see also Puri v. University of Alabama Birmingham Huntsville, ARB No. 13-022, ALJ Nos. 2012-LCA-010, 2008-LCA-038, 2008-LCA-043 (ARB Sept. 17, 2014).

The most obvious way for an H-1B employer to meet the first step is to send a letter or email to the H-1B employee notifying him of the termination of employment.  Since the H-1B employer in Dedios waited many months before sending the employee a termination letter, the Court found that the wage obligation continued until October 27, 2010, in spite of the fact that the employer notified USCIS on June 1, 2010 and offered a flight back to the employee’s native Philippines on May 21, 2010.