Health Care Blog

Rep. Gutierrez has long been a pro-immigration stalwart. The initial version of CIR ASAP is likely more liberal than any future bill. The initial list of co-sponsors does not include any Republican members of Congress.

It will be interesting to see if the Obama Administration comments on CIR ASAP or whether they wait for the Senate version of the bill to weigh in. It is assumed that Sen. Schumer’s office has been working on a tamer version of CIR.

Once CIR ASAP is published, I will review it for impact on Healthcare occupations. CIR ASAP comes on the heels of an impressive study by the Immigration Policy Center that highlights the critical role immigrants play on US healthcare.

Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 are:

EB2:
China: July through October 2005
India: February through early March 2005

EB3:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005

FY2010 runs until September 30, 2010. Based on these projections, EB3 priority dates should move to mid-2005 by the end of FY-2010. This means that there is a five year processing time for EB3 professions, such as most nursing positions. This is a horrendous processing time. Congress plainly has to enact positive legislation aimed at progressing processing times for shortage occupations such as nursing.

The consolation is that intending immigrants can now plan for when their immigrant visa number will come. Those with EB3 priority dates beyond Summer 2005 should not expect their IV appointment in 2010. Charlie Oppenheim and the Visa Bulletin team deserve credit for producing these estimates. The fault for the long retrogression is with Congress, not with the DOS.

The Visa Bulletin also contains an explanation of the visa number calculation that is required reading for anyone interested in immigrant visa allocation.

The PWD is a mandatory part of the immigrant visa process (permanent residency or green card). While employers must still pay a prevailing wage in the nonimmigrant process (e.g. H-1B), it is not a mandatory part of the nonimmigrant process; employers are afforded safe harbor benefits by using the PWD process in nonimmigrant matters.

The present PWD process is straightforward. Employers (or their attorneys) file a PWD with the State Workforce Agency (SWA) that controls the worksite. This has not been ideal. Different states have different processing times, different forms, and different processes. For many years the DOL has contemplated a centralized program.

PWDs will be submitted directly to the new National Prevailing Wage and Helpdesk Center (NPWHC) in Washington D.C. starting January 1, 2010. This should improve the process by adding consistency and uniformity.

The new PWD is the Form ETA-9141, the Application for Prevailing Wage Determination. The PWD must be sent by mail or delivery service to: U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn: PWD Request; 1341 G Street, NW., Suite 201, Washington, DC 20005- 3142.

The DOL indicated that it is developing an on-line PWD, but it did not commit to a date when the on-line PWD will be available. It is expected that until the on-line Form is ready, the PWD process will slow, perhaps quite considerably if past history is any guide. This is especially disheartening for green card cases, whose processing times have dramatically risen in recent years.

MU is predicting that the H-1B cap will be reached in the next 2 weeks, perhaps sooner. Accordingly all MU clients are encouraged to send us their H-1B cap-subject filings ASAP.

USCIS then adds back any unused Singapore and Chile H-1B1 visas. In most years, this is 6,500+ visas. In other words there are only a few hundred Singapore/Chile H-1B1s used every year. So then we add 57,800 + 6,500 and this means that the actual H-1B cap is around 64,000 H-1Bs.

International workers who are working here in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

Many healthcare professions ordinarily qualify for H-1(b) status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing jobs.

From USCIS:

As of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The full press release is available on CGFNS’ website.

Employees that may need an H-1B visa include:
– International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
– International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
– Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;
– H-1B workers with a cap exempt organization; and

International workers who are working here in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

Many healthcare professions ordinarily qualify for H-1(b) status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing jobs.

From USCIS:

As of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

While the H-1C program could be an excellent visa option for some, legacy regulation and interpretation has limited the application of the H-1C to just 14 facilities in the United States. While the H-1C expiration may be devastating for these 14 facilities, it will have no effect on any other facilities in the United States.

Nevertheless there has been some skepticism about whether CIR will ever be introduced. Some, like Rep. Gutierrez are getting anxious.

This week we saw the best indication that CIR is still on schedule. In prepared remarks to the Center for American Progress, DHS Secretary Napolitano said,

“the President continues to be fully committed to reforming our immigration laws, and why he asked me to take a lead role in this effort.”

Sec. Napolitano’s plan calls for a “three-legged stool”. She continued,

“Let me be clear: when I talk about “immigration reform,” I’m referring to what I call the “three-legged stool” that includes a commitment to serious and effective enforcement, improved legal flows for families and workers, and a firm but fair way to deal with those who are already here.”

Legal changes to employment-based immigration, including improved legal flows for workers, is the only way that Schedule A visa reform can happen. We’ve seen a few indications that CIR is still set to move early next year. The Secretary’s remarks are the clearest indicated yet.