Musillo Unkenholt Law | Healthcare Immigration Blog

October 6, 2016
Uncategorized

SUPREME COURT REFUSES TO RE-HEAR CASE ON OBAMA’S IMMIGRATION EXECUTIVE ACTIONS

On Monday, October 3, 2016, the USSupreme Court refused to reconsider the case regarding the expansion of DACAand creation of DAPA. DACA,created in 2012 will remain in place.

President Obama sought to expand the qualifyingcriteria for DACA and create a program for the undocumented, immigrant parentsof US Citizens. President Obama createdDACA and sought to expand DACA and create DAPA by Executive Order, not an actof Congress. A group of states sued theUS federal government, arguing the President did not have the power to expandDACA or create DAPA. In 2015, a FederalJudge agreed with the states and held the program to be invalid.

In January 2016 the Supreme Courtagreed to hear the case and seemed poised to issue a landmark decision onimmigration. However, the Supreme Courtdeadlocked in a 4-4 decision which left in place the lower court’s, FederalJudge’s decision. President Obama thenasked that the Supreme Court re-hear the case.

The Supreme Court rarely reconsidersa case, but sometimes agrees to do so when the court is split 4-4 because oneof the 9 justices is vacant due to illness, retirement, or death. Even if the Supreme Court had agreed tore-hear the case, the decision would not take effect until 2017 or later, afterPresident Obama has left office. Thisdecision (or indecision) by the Supreme Court draws more attention to thequestion of immigration and presidential power in the upcoming election.

October 3, 2016
Uncategorized

LAWSUIT AGAINST H-1B LOTTERY SURVIVES KEY LEGAL HURDLE

Earlier this year, on June 2, 2016,a lawsuit against the USCIS was filed in federal court alleging the H-1B cap isunlawful because federal law requires H-1B applications be processed on a firstcome/first serve basis.

The lawsuit was filed as a classaction, a legal procedure which allows multiple individuals with the samegrievance(s) to join together and file one lawsuit. The case was filed by two employers and twoH-1B workers whose cases were not selected in the H-1B cap.

The USCIS filed a motion to havethe lawsuit thrown out of court, stating the H-1B workers cannot sue becausethey are not in the US and that the H-1B employers have not been injured by theH-1B lottery system. On September 23,2016, the federal judge in the case rejected these arguments and indicated the case will move forward.

If the lottery system is ended, thelawsuit argues that the USCIS should give priority dates to H-1Bs and processthe cases in the order received, similar to how green cards are issued. Alternative approaches which have beensuggested by various stakeholders include:

Raising the H-1B cap to a higher number
Basing the number of H-1Bs on the demand in the USeconomy
Creating H-1B cap exemption for those in STEMfields
Creating H-1B cap exemption for Schedule Aoccupations (currently RNs and PTS)
Creating H-1B cap exemption for those with a USmaster’s degree or greater

September 28, 2016
Uncategorized

AAIHR: USCIS ACTION ON FCCPT HURTS PATIENTS, PRACTITIONERS

The USCIS is no longerallowing fully-qualified foreign-educated physical therapists to practice inthe US unless they have qualifications that far exceed American-educatedphysical therapists. This action harmsUS patients, who are already struggling to find qualified physical therapists.

A simple review of recentnews stories shows that Physical Therapy is the occupationin shortest supply. These supplyshortage are already showing up across the US. For instance, places like Texas,Arizona,and acrossthe US.

The USCIS’ actionis contrary to opinions by CAPTE, APTA, and the 53 State Boards of Physical Therapy,which includes all 50 states and other jurisdictions, such as Puerto Rico and WashingtonDC.

The AmericanAssociation of International Healthcare Recruitment is gravely concerned byUSCIS’ intent to deny the authority of the FCCPT to issue foreign physicaltherapy healthcare worker certifications. Musillo Unkenholt, who is a member of the AAIHR, is working closely with the AAIHR to develop a strategy and dialogue with the USCIS over this decision.

APTA reports theshortage of physical therapists could potentially reach over 27,000 in theUnited States by 2020, driven by a Bureau of Labor Statistics projected 34percent increase in demand in physical therapists over the next eight years.This projection assumes that physical therapists trained abroad will continueto immigrate. The USCIS decision will only worsen this shortage.

September 27, 2016
Uncategorized

USCIS WILL ALLOW MORE I-485 FILINGS IN OCTOBER THAN USUAL

USCIS has announcedthat for October 2016 it will allow I-485 filings for those immigrant visaapplicants who qualify under the more favorable Date of Filing chart.

Dates of Filing Chart – October 2016

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR13	22APR09	C
3rd	C	01MAY14	01JUL05	01SEP13

If you have apriority date earlier than the dates listed on the above table, and you arelawfully in the United States, you can file your I-485 from October 1-31,2016. Please keep in mind that the USCISwill not approve your immigrant visa application unless your priority date isearlier than the standard Final Action chart.

Final Action Chart– October 2016

Employment based	All Charge- ability Areas Except Those Listed	CHINA- mainland born	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	15FEB12	15JAN07	C
3rd	01JUN16	22JAN13	01MAR05	01DEC10

September 24, 2016
Uncategorized

FAQ ON THE NEW FCCPT STANDARD

What is the new policy?

All applicants forthe FCCPT Type I Certificate must now hold a diploma that says the word “Masters”. If you have a diploma that says “Bachelors”you will not be eligible for the Type I Certificate. Also, an applicantmust have at least 202.1 credit hours.

When does the new policy go into effect?

It is effective immediately. If you have a pending Application before theFCCPT, they will be returning your Application and issuing you a refund.

I have heard that the standard may be againraise to a Doctorate of Physical Therapy. True?

Yes. It is expected that if you apply for the TypeI after January 1, that you will need to have a DPT in order to qualify for theType I.

But when I graduated from University, theAmerican standard was a lesser degree. Am I “grandfathered in” under the old standard?

Unfortunately theUSCIS is taking the position that the Application filing date is controlling,not the date of graduation.

I have a Type I that is expiringshortly. Should I be concerned?

No. Renewals do NOT examine education, only licensure verification and proofof English proficiency.

Why is the USCIS doing this?

The USCIS’decision was predicated on a number of misunderstandings and inaccuracies.USCIS’ decision to terminate FCCPT accrediting these international programs islargely based on flawed assumptions around required coursework hours and degreetitles.

Is anyone doing anything to try and changethis new policy?

Yes. There is a concerted effort from stakeholdersto educate the USCIS about the problems with its new interpretation and themassive impact on US patients and on internationally-trained Physical Therapists.

September 23, 2016
Uncategorized

USCIS DEMANDS THAT FCCPT RAISES STANDARD FOR THE TYPE I

In an unprecedenteddevelopment, USCIS is demanding that FCCPT only issue FCCPT Type I Certificatesto graduates of university programs whose diplomatitles read “Masters Degree,” and who have at least 202.1 credit hours. Any graduate of a program that is equivalentto a US Masters Degree will no longer be eligible to enter the US and practice PhyscialTherapy. USCIS’ actions put US patients’lives at risk, decimate an already dire Physcial Therapy shortage, and alienatefully qualified foreign-trained Physcial Therapists.

USCIS has issued aNotice of Intent to Deny the FCCPT’s ability to issue Type I Certificates. FCCPT is understandably ceding to the USCIS’wishes in spite of USCIS outrageous action. The USCIS’ actions were done without the advice and consultation ofinterested stakeholders, such as FSBPT, APTA, CAPTE and the AAIHR. It is unclear if the USCIS has consulted withthe US HHS, which it is required to do by statute.

The AAIHR hasissued a press release on this matter,which sums up the issue:

“USCIS’ decision was predicated on a numberof potential misunderstandings and inaccuracies. USCIS’ decision toterminate FCCPT accrediting these international programs is largely based onassumptions around required coursework hours and degree titles. However, the comparison of degree “titles” orcredit hours is irrelevant. Titles and credit hours vary by institution.”

MU Law is releasing an FAQ shortly.

September 17, 2016
Uncategorized

VISA BULLETIN PREDICTIONS FOR 2016-17

The Department ofState’s Visa Bulletin guru, Charlie Oppenheim, hosts monthlymeetings with the American Immigration lawyers Association. Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officerwho is responsible for producing the Visa Bulletin each month. This month’s Check In With Charliefeatured predictions about EB2 and EB3 in most of the popular categories for readersof this Blog. Here are some highlights:

Philippine EB3 – Charlie offered someof his most optimistic predictions for this category. He expects that this category will initially moveabout three weeks per Bulletin, but that it should speed through 2011 and 2012,likely finishing the fiscal year into 2013. This is consistent with internal MU Law analysis which sees thiscategory progressing into 2013 by the Summer of 2017.

India EB2 and EB3 – The DOS expectsthat EB2 will move at a three to four month rate. Those in this category are cautioned that2007 was a very unusual year in immigration because of the VisaGate scandal in 2007. Therefore wemay see inconsistent progressions until the date moves comfortably beyondmid-2007.

The EB3 categorywill move much slower. Charlie says justone week per Bulletin.

Worldwide EB-2 and EB-3 – EB-2 willremain current for the foreseeable future. Charlie cautions that demand is increasing in this category. It may be necessary to implement a cut-offdate sometime in the Spring of 2017. Worldwide EB-3 will continue to see a slight retrogression.

September 9, 2016
Uncategorized

OCTOBER 2016 VISA BULLETIN

The Department of State has just issued the October 2016 Visa Bulletin. This is the first Visa Bulletin of Fiscal Year 2017. As the fiscal year begins we are able to make some educated guesses at where the Visa Bulletin will be in the future.

October 2016 Visa Bulletin

Final Action Dates

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

Employ- ment based	All Charge- ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	12FEB12	15JAN07	C	C
3rd	01JUN16	22JAN13	15MAR05	01JUN16	01DEC10

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 progression continues. For Consular processing cases a June 2016 date is effectively Current.

China: As expected, these dates moved forward 2+ years. Unusually, the China EB-3 has a more favorable date than EB-2, although this phenomenon has happened often for China as a result of many Chinese EB-3 workers “upgrading” their applications to EB-2.

India: EB-2 India had a notable progression from last month. It will be interesting to see how this date moves forward. In the Summer of 2007 hundreds of thousands of I-485 Applications were filed a result of VisaGate. As a result of that bulk of filings, this number could slow in the forthcoming months.
EB-3 had its usual one month forward movement.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another six months. The Phillippine EB-3 number essentially cleaned out all 2010 EB-3 visas in just two months. This is what we have expected. (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.”).

We expect more of the same fast progression in FY2017 for Philippine EB-3. We expect that the Philippine EB-3 number will progress at least three years in FY2017.

August 29, 2016
Uncategorized

USCIS PROPOSES NEW RULE FOR ENTREPRENEURS

On Friday, August 26, 2016 the USCIS released a proposed rulewhich would allow certain entrepreneurs to enter the United States for atemporary period of time to start a business in the US.

The proposed rule would allow entrepreneurs of startupentities to enter the US, if the startup will provide a significant publicbenefit through the substantial and demonstrated potential for rapid businessgrowth and job creation. Under theproposed rule, the USCIS will decide on a case-by-case basis if theentrepreneur is eligible to enter the US. Factors to be considered are:

· If the entrepreneur has a significant interest in the startup(at least 15%) and has an active role in the startup’s operations;

· If the startup was formed in the US within the past threeyears;

· If the startup has substantial and demonstrated potential forrapid business growth and job creation, as evidenced by:

o significantinvestment of capital (at least $345,000) from US investors with record ofsuccess,

o significantinvestment of capital (at least $100,000) from a US government entity(ies),

o partiallysatisfying one or both of the above criteria in addition to other reliable andcompelling evidence of the startup’s potential for growth and job creation.

Under this new rule, theentrepreneur may be granted up to a two year stay in the US to overseestartup. The entrepreneur may be grantedan additional three year stay, but only if the entrepreneur and the startupentity continue to meet the criteria above.

Foradditional information, please see the USCISwebsite.

August 24, 2016
Uncategorized

IMMIGRANTS ARE “IMPERATIVE” TO CURE US HEALTHCARE STAFFING SHORTAGES

A new report by theInstitutefor Immigration Research declares that immigrant labor plays an “outsizedand imperative role in the US healthcare system. The AdvanceHealthcare Network reports that the IIR reports these figures of the populationare immigrant labor:

28% of physiciansand surgeons
40% of medicalscientists in pharmaceutical research and development
50% of medicalscientists in biotechnology in states with a strong biotechnology sector
22% of nursing,psychiatric and home health aides
15% of registerednurses

This is in spite ofthe fact that only 13% of the US population is foreign-born. The IIR is funded by George MasonUniversity.

The AHN write-upquotes Monica GomezIsaac, executive director of George Mason’s IIR. Ms. Isaac is very positive about thecontributions that immigrants make in these fields, but she is incorrect inthis quote:

“In the instance of nurses, thelack of an international standard for qualifying registered nurses is absent.The varying degrees of training based on the standards of individual nationsmake it complex to recruit and fill nursing shortages.”

This is untrue fortwo reasons. First, there is aninternational standard for qualifying nurses. All US nurses must pass the NCLEX-RN Exam, which is offeredall around the world. Second, thetraining standards are not the reason for the lack of foreign-born nurses. Between15-20,000 internationally-trained RNs are registering to take the NCLEX-RN examevery year. In the mid-2000s, thatnumber was even higher.

The problem is theimmigrant visa retrogression. A fully-qualifiednurse from the Philippines takes 3-5 to get her immigrant visa. A fully-qualified Indian nurse takes 10+years. If the US Congress would updatethe immigration laws to allow in more nurses, the bottleneck would fade.

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