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FOREIGN NCLEX RATES CONTINUE TO RISE

The latest 2017 NCLEX statisticsshow that foreign-trained nurses are taking and passing NCLEX at the highestrates since the peak years of 2006-2007. Almost 10,000 foreign-trained nurses have taken and passed the NCLEX in2017.  US NCLEX pass numbers have been tickingupward since 2014, although at a much smaller rate than foreign-trained nurses
These numbers are considerablylower than the peak years of last decade.  In 2006, 20,907 internationally educated RNspassed the NCLEX exam. In 2007, the volume jumped; 22,827 internationallyeducated nurses passed the NCLEX exam. With the onset of retrogression, 2008saw a slight decline; 18,905 internationally educated RNs passed the exam.
Year 
US
Fgn
2014
149,980
4,555
2015
154,955
5,382
2016
154,749
8,332
2017
157,000
9,200
Notethat the 2017 statistics are MU Law generated estimates.  The 2017 results will not be published untilJanuary.

VISA BULLETIN PROCESSING TIMES COULD SPEED UP IN 2018

NVC and Consular Processing green card processing times could speedup in 2018 due to an unintended consequence of the Trump administration’s new requirementthat all I-485,Adjustment of Status candidates must now undergo a green card interview . 
Why? The USCIS will take longer to process Adjustments of Statusin 2018 because of the new interview requirement.  Because of the elongated I-485 processingtimes, USCIS will be able to process fewer green card approvals in 2018.  As a result, more green card numbers willspill over into Consular Process queue.
We often see this phenomenon in the summer months, as we approach theend of a fiscal year.  The DOS acceleratesthe Visa Bulletin in order to ensure that it uses the full allotment ofemployment-based visa numbers.  We explainedthis phenomenon in a 2016 MU Law FAQ.
Unsurprisingly, Charlie Oppenheim, the DOS’ guru on immigrant visanumber allocation, recognized that the new I-485 interview rule may delay I485green cards during his October2017 AILA “Check In With Charlie”.
MEMBERQUESTION #1: When does USCIS request and allocate a visa number to anindividual case?

ANSWER#1: Per the agreed upon policy, USCIS will only request an immigrant visanumber once all required processing is 100% complete, including conducting anyrequired interview, receipt of a complete medical exam, all requiredclearances, etc.
MEMBERQUESTION #2: Could you please confirm that a visa number that gets allocated toeach applicant who has successfully passed the interview should be preservedfor that applicant unless the applicant becomes ineligible for permanentresidence?

ANSWER#2: With regard to USCIS, though this is relatively rare, there are occasionsin which USCIS requests a number, but before the adjustment of statusapplication is fully processed, subsequent derogatory information comes to theofficer’s attention which impacts eligibility. As another example, USCISrecently sent RFEs out on numerous EB-3 India cases which had beenpreadjudicated in anticipation that the final action date for this categorywould advance during August and September. Visa numbers were provided for thosecases with the expectation that the applicants would respond to the RFEs intime to be approved before the end of the fiscal year. Unfortunately, hundredsof individuals did not respond in a timely manner, and USCIS determined that itwould be unable to complete adjudication of those cases prior to September 30,2017. Those cases were returned to “pending demand” status, and the visanumbers for those cases became available to other cases within FY 2017. USCISwas provided with a new number for each case once the requested evidence wasreceived and successfully processed. As a result of new visa number requestsfor several hundred of these cases, the final action date for EB-3 India is notcurrently advancing. For consular processing cases, a visa number is allocatedto a consular post for use during the month in which the visa applicant is originallyscheduled for a visa interview. If the visa is not used during that month (i.e.the case is placed in administrative processing), the number is returned to theVisa Office at the end of the month.

SF CHRONICLE: TRUMP TO ELIMINATE H-4 EADs

The San Francisco Chronicle reports that the Trumpadministration plans to rescind the H-4 EAD rule.  The H-4 EAD rule, which has existed for 2+years, allows H-4 spouses of H-1B workers to work, provided that the H-1Bprimary spouse has completed the I-140 stage of the green card process.  The Chronicle reports that 41,526 H-4 spousesearned work authorization through the program in the fiscal year throughSeptember 2016.
The recession of the H-4 EAD rule is being pressed because of alawsuit that questions whether USCIS ever had the legal authority to create the2015 enabling rule.  In a Motion madeduring the lawsuit, the administration hinted at the fact that they are in theprocesses of drafting a new rule that would rescind the H-4 EAD rule.
A new rule however would have to go throughthe notice-and-comment period, which would delay the implementation of the rule.  Notice and comment periods can take anywherefrom a few months, to many years. 

DECEMBER 2017 VISA BULLETIN: ANALYSIS

The Department of Statehas just issued the December 2017 VisaBulletin. This is the third Visa Bulletin of Fiscal Year 2018.  This blog postanalyzes this month’s Visa Bulletin.
December 2017 VisaBulletin
Final Action Dates –Applications with these dates may be approved for their Green Card (PermanentResidency card) or Immigrant Visa appointment.
EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL’PNES    
EB-1
C
C
C 
C
C
EB-2
C
01JUL13
01NOV08 
C
C
EB-3
C 
08MAR14
15OCT06 
C 

15JAN16       
MU Law Analysis
All Other:  The EB-2 hasbeen current for many years.  The EB-3 isalso current and is expected to remain current for the foreseeable future.
China (mainland-born):  Both China EB-2and EB-3 progressed about one month.  The China EB-3 remains morefavorable than Chinese EB-2.  The odd situation of China EB-3 progressingfaster than China EB-2 will remain to be the case for the foreseeable future.
India:  India EB-2progressed about one month, which is what we except the monthly progressionswill be in FY 2018.  Unfortunately, India EB-3 did not move.  Recently,the DOS said that EB-3’s progression will be “limited.”  MUsuspects that EB-3 will not progress at any notable rate until at least theIndia EB-3 date moves past the Visa Gate date of August 2007.
Mexico: Mirrors All Otherin analysis.
Philippines: The PhilippineEB-3 date stayed in January 2016, reflecting the fact that demand for thePhilippine EB-3s recommenced heavy demand in 2016.  This increased demand will be the cause forslower progressions in the FY2018, progressing no more than 1-2 months per VisaBulletin.

REUTERS: NURSING CRISIS STRAINS U.S. HOSPITALS

Reutersreports that health care facilities all across the US are facing dire nurse staffingshortages, which are leading to increased expenses related to staffing.  They interviewed over 20 hospitals across theUS and found nearly universal concerns tied to a lack of nurses.  
Reuters cites a StaffingIndustry Analysts report that says that the “cost nationwide for travel nurses alone nearly doubled overthree years to $4.8 billion in 2017”. For instance, “university-affiliated J.W. Ruby Memorial Hospital inMorgantown is spending $10.4 million in 2017 compared with $3.6 million a yearearlier to hire and retain nurses.”
The article highlights the classicreason for the shortage, which have longbeen on the industry’s radar.  For instance:
Baby Boom Generation Demand.  The US Baby Boomgeneration, those born 1946-1964, has reached an age where they willincreasingly demand nursing services.  As The Atlantic pointsout:
Today, there are more Americansover theage of 65 than at any other time in U.S. history. Between 2010 and2030, thepopulation of senior citizens will increase by 75 percent to 69 million,meaning one in five Americans will be a senior citizen; in 2050, anestimated 88.5million 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 10-15years.
Few Nurse Educators.  Nursing Ph.D. programs have been unableto attract nursing faculty.  These nurses Ph.D’s have traditionally madeup large numbers of nursing school faculty.  Part of the reason for thisis that a Bachelor nursing graduate is usually offered a job at graduation,thus reducing that graduate’s incentive to seek out graduate nursingeducation.  Without a dramatic increase in nurse faculty, it will beimpossible for the US to supply enough nurses to meet the demand.
Distribution Challenges.  Some of the American nursing problemstems from the lack of mobility ion the nursing force.  Nurses are oftenunwilling to leave their hometowns for jobs in rural areas or high-nurse demandareas, even if those positions pay better.

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

DIVERSITY VISA LOTTERY PROGRAM

After the tragic terrorist attackin New York, President Trump recommended eliminating the Diversity Visa Lotteryprogram (DV Lottery).  Many of our blogreaders have likely not heard of the DV Lottery.  Here are some key points about the DVLottery:
  • TheDV Lottery was established by an Act of Congress in 1990.  Fifty Thousand green cards are allocated tothe DV Lottery and are reserved for countries witha historically low rate of immigration to the US. TheDV Lottery countries are identified each year by the US Department of State.
  • DVLottery applicants must registeron-line for the lottery.  There is no feeto register or apply for the DV Lottery.
  • Inaddition to being a native of one of the named countries, DV Lottery applicantsmust meet certain educational orskilled work requirements. 
  • In2015, which is the last year for which we have statistics,close to 14.5 million people around the world applied for the 50,000 DV Lottergreen cards.
  • Thosewho are selected will be notified through the Entrant Status Check, E-DV Website.  DV Lottery winners are never notified by hardcopy mail or email.  There is widespreadfraud around the DV Lottery program, so applicants must ensure that theirnotification of lottery winning is in fact from the US Department of State.
  • DVLottery winners must still meet all eligibility requirements before obtaining agreen card.  The requirements include thesame securityscreening undergone by family-based and employment-based green cardapplicants before obtaining a green card. 
  • Inaddition to the standard screening, all DV Lottery winners must appear for an in-personinterview with an Immigration of Embassy Officer.
  • If processing of the DV Lotterywinner’s application cannot be completed before the end of the US government’s fiscal year,due to background checks, resource limitations, or other issues, the DV Lotterywinner’s application will be denied, and the opportunity to obtain the greencard will be lost.

CISSNA’S FIRST ACT: CONTINUE ASSAULT ON BUSINESS IMMIGRATION

New USCIS Director L. Francis Cissna’sfirst act as USCIS Director is to rescind a 2004 Memorandum that had easedburdens on nonimmigrant extension petitions. In its place, USCISissued a Memorandum instructing officers to revisit all prior findings offact and law in extension petitions.  USCISsays that this new policy is, “more consistent with the agency’s currentpriorities and also advances policies that protect the interests of U.S.workers.”
Accordingly, employers and employees should expectdelays in the adjudication of extension petitions. This new Memorandum will be used as authority for increased RFE and denials. 

AFTER LONG DELAYS CISSNA SWORN IN AS DIRECTOR OF USCIS; NIELSEN NOMINATED FOR DHS

To little fanfare, L. FrancisCissna was finally swornin as Director of the USCIS.  Pres.Trump originally nominated Cissna in April. There was little news coming out of Washington explaining the delay inCissna’s appointment.  The lack of informationled to plenty of speculationabout the delay.  Cissna served invarious capacities within the Department of Homeland Security, most recently asthe Director, Immigration Policy within the DHS Office of Policy,
Delayed appointments are nothing newfor this administration.  The DHS hasbeen without a leader since Secy. Kelly became Pres. Trump’s Chief of Staff in July.  The administration finally nominated KirstjenNielsen earlierin October, more than two months since Secy. Kelly’s promotion.
Axiosdid not have favorable reporting on Ms. Nielsen,
“Nielsen is not a beloved figure atDHS; just as she wasn’t inside the White House. She has a very sharp-elbowedapproach to doing business and doesn’t command anywhere near the respect thather predecessor, Kelly, did, according to more than half a dozen sources who’veworked with her.”

NOVEMBER 2017 VISA BULLETIN: ANALYSIS AND PREDICTIONS

TheDepartment of State has just issued the November 2017 Visa Bulletin.  This is the second Visa Bulletin of FiscalYear 2018.  This blog post analyzes thismonth’s Visa Bulletin.
November2017 Visa Bulletin
Final Action Dates — Applicationswith these dates may be approved for their Green Card (Permanent Residencycard) or Immigrant Visa appointment.
EB 
Class 
All Other  
CHINA       
INDIA     
MEXICO   
PHIL’PNES    
EB-1
C
C
C 
C
C
EB-2
C
15JUN13
08OCT08 
C
C
EB-3
C 
01FEB14
15OCT06 
C 

15JAN16       
MU LawAnalysis
AllOther:  The EB-2 has been current formany years.  The EB-3 is also current andis expected to remain current for the foreseeable future.
China(mainland-born):  China EB-1reverted to Current.  Our sense is thatit will stay Current for much of the fiscal year.  Both China EB-2 and EB-3 progressed onemonth.  The China EB-3 remains morefavorable than Chinese EB-2.  The odd situationof China EB-3 progressing faster than China EB-2 will remain to be the case forthe foreseeable future.
India:  India EB-2 progressed about one month, whichis what we except the monthly progressions will be in FY 2018.  Unfortunately, India EB-3 did not move.  A few weeks ago, the DOS said that EB-3’sprogression will be “limited.” MU suspects that EB-3 will not progress at any notable rate until atleast the India EB-3 date moves past the Visa Gate date of August 2007.
Mexico: MirrorsAll Other in analysis.
Philippines:  The Philippine EB-3 number essentially cleanedout all of the 2010 through 2015 EB-3 visas in FY2017.  The demand for Philippines EB-3 numbers increaseddramatically in 2016-17.  This increaseddemand will be the cause for slower progressions in the FY2018, probablyprogressing 1-2 months per Visa Bulletin.

NEW STREAMLINED PROCESS TO OBTAIN SIMULTANEOUS EAD AND SSN

Effective October 1, 2017, the USCitizenship and Immigration Service (USCIS) and the Social SecurityAdministration (SSA) have instituted a newinformation-sharing partnership allowing foreign nationals to apply for anEAD (Employment Authorization Document) and a SSN (Social Security Number) atone time and on one form.

This should be helpful for thoselawfully in the US and who are eligible for work authorization via an EAD, butwho have previously not had social security numbers.  H-4/EAD, L-1/EADs, and spouses and children applyingfor I-485/EADs are some examples of people who will benefit from this newprocess.

EADs are documentation of theindividual’s work authorization and can be shown to employers to satisfy theI-9 and e-verify tests.  EADs permit theforeign national to work for a finite period of time, listed on the EADcard.  SSNs are used to report wages tothe government and to determine the individual’s eligibility for certaingovernment benefits. 
Under the previous system, foreignnationals had to first obtain an EAD and then go to their local SSA Office andapply for an SSN separately.  The revisedEAD Application (Form I-765) allowsapplicants to apply for an SSN or a replacement SSN card without visiting theSSA Office.  The USCIS will now transmitthe SSN data to the SSA for processing. Applicants will receive their EAD from the USCIS and their SSN card fromthe SSA within two weeks.
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