H-1B Strategic Planning Teleconference
January 14, 2010
The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary’s work. The Memo lists eleven factors that will be considered.
The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):
H-1B WILL BE APPROVED:
- Traditional employment where the employee occasionally visits off-site clients.
- Long-Term Off-Site Employment where the Beneficiary reports to Petitioner’s staff and not to third-party clients’ staff.
- Long-Term Off-Site Employment where the Beneficiary using the Petitioner’s proprietary software/processes.
H-1B WILL NOT BE APPROVED:
- Self-Employed Beneficiary.
- Independent Contractors.
- “Job-Shop” where the Petitioner places H-1B employee at third-party off-site clients and the Petitioner exercises no control over the Beneficiary’s work.
Characteristics of the "job shop" are:
o Petitioner has contracts with many companies in which it supplies staff to these companies.
o These contracts do not list specific positions, but are staffed on an “as-needed” basis.
o Beneficiary is working in a “core position”. An example of a “core position” is working on a client’s payroll software.
o Beneficiary reports to a manager who is an employee of the third-party company.
o The Beneficiary’s work assignments are determined by the third-party company.
o No proprietary information is used.
o The Beneficiary’s progress reviews are completed by the third-party company.
The key piece of evidence in the H-1B petitions is going to be your company’s contracts with your end-clients. If you use standard contracts with your clients, please send them to your MU attorney so that we can review these contracts.
MU will be hosting a free teleconference with all clients on Tuesday January 26 at 3PM ET / 12 Noon PT. On the teleconference we will discuss how the Memo will impact staffing companies.
In addition, we will discuss preparing for the H-1B cap season, and so all clients of MU who use the H-1B visa are encouraged to dial-in. If you would like to participate on the call, please send an email to Mary. Mary will send in the dial-in information to you a few days before the call.
Sentosa Care Case Re-Emerges
January 13, 2010
Shortly after the walkout, the Suffolk County District Attorney indicted the nurses alleging that the mass resignation endangered some of the patients at the Avalon Gardens Rehabilitation and Health Care Center. A New York State appellate court eventually ruled that the resignations were lawful and ordered Suffolk County to stop prosecution. The appellate court also ruled that Suffolk County could not indict the nurses’ attorney who had advised the nurses to quit.
Emboldened by their wins in the US court system, the nurses fought back and filed complaints against their Philippine recruiter, Sentosacare. This time, the nurses lost their cases, which had been filed with the Philippine Overseas Employment Agency (POEA) and the National Labor Relations Commission (NLRC). Hearings were heard in the Philippine congress.
After losing in the Philippines, the nurses took their action to America and sued Sentosacare. In early 2008, that case too was dismissed. That dismissal cited a lack of evidence.
A nursing home attorney and the Suffolk County District Attorney didn't immediately comment about the most recent federal civil rights lawsuit.
Visa Bulletin Starts to Slowly Move
January 12, 2010
The VB dates in February will be:
EB1: all current
EB2: all current, except China (22May05) and India (22Jan05)
The EB2 category had a slight movement in China, none in India. This is consistent with the January 2010 VB. The EB3 category had 6 week improvement in all categories, except India and Mexico. These progressions are less than one might have expected, but not so much so that there should be any cause for doubting the earlier DOS projections.
The January VB projections for EOY FY-2010 cut-off dates were:
EB2:
China: July - October 2005
India: February - early March 2005
EB3:
Worldwide: April - August 2005
China: June - September 2003
India: January - February 2002
Mexico: January - June 2004
Philippines: April - August 2005
The Next Decade’s Jobs
January 8, 2010
Leading the pack is Registered Nursing. The US economy expects to demand over a half million RNs (22%) in the next ten years, at an average salary over $60,000 per year. Immigration traditionally has been used to fill obvious US supply shortages. Americans opinions on immigration differ, but after looking at the objective employment numbers, liberalized immigration for healthcare workers ought to be something everyone can agree on.
CHC Healthcare votes as a condition for CIR?
January 5, 2010
There are a few hurdles before enactment. Each chamber of the US legislative branch -- the Senate and House – have different versions of the Healthcare bill. US law says that the discrepancies have to be remedied through a process called Conference. The Conference committee ordinarily consists of leaders in the Senate and House. These leaders hammer out a compromise bill and then offer the remedied bill to their respective chambers.
Each chamber of Congress then brings the compromise bill up for a vote. Ordinarily, the vote is a formality since each party and each chambers’ leadership teams obtain approval from all concerned in advance of the vote.
This series of give and take negotiations provides an opportunity for certain politicians. A January 4, 2010 report published on Talking Points Memo says that the Congressional Hispanic Caucus (CHC) is conditioning their support for the Healthcare bill. The condition is that the White House takes up CIR this year.
Rep. Gutierrez, who introduced CIR ASAP in December, heads the CHC. His CIR ASAP contains many measures that are friendly to the immigration of healthcare professionals.
CGFNS Prices Increase
December 28, 2009
The new fee structure includes increases to almost all programs. Included in the price increase are Applications for the Certification Program, the Credentials Evaluation Service, the Visa Credentials Assessment program, the Credential Verification Service for New York State and other ancillary services.
The standard Visa Screen price increases to $540, from $498. The renewal Certificate price is increasing from $250 to $275.
H-1 Cap Has Been Reached
December 22, 2009
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
- Prospective international employees currently living abroad.
Holiday Reading
December 21, 2009
The Library of Congress’ Thomas database has a hyperlinked version that is better to use if you’re just trying to focus on any one section. The important sections for Healthcare immigration are Chapter I, Title III.
Sec. 301 – Recaptures past unused visa numbers
Sec. 302 – Exempts LPR dependents from the IV quotas.
Sec. 303 – Slightly increases the per country quotas.
Sec. 320 – Provides IV cap exemptions for certain STEM and shortage occupations
Sec. 321 – Allows those with pending IVs to file Adjustment of Status even if their priority date is not current.
Happy Holiday reading!
Summary of CIR ASAP
December 15, 2009
Here are the other highlights for Healthcare workers and Employers:
- Recapture of all Immigrant Visas (Family & Employment) from 1998-2008. Unfortunately this does not include the largest numbers from the 1990s; (UPDATE- The IPC summary says that the recapture is 1992-2008, which makes more sense and is better)