513.381.VISA (8472)
Musillo Unkenholt LLC | 302 West Third, Suite 710 | Cincinnati, Ohio

Health Care Blog

View the latest articles

MU TURNS SEVEN

Todaymarks the seven year anniversary of the Musillo Unkenholt LLC law firm.  We have always tried to serve our clients withintelligence, speed, and respect.  We arevery proud of the work that we have done here on behalf of our many clients.  Over these seven years we have significantly grownthe firm.  We have about twice as manyemployees as when we started on July 1, 2009. Most of our growth is due to referrals from our clients, which is thegreatest sign of success.
Thefirm’s lifeblood is the people who work here. We have three paralegals who have been with us since Day One, andanother who re-joined us from our prior law firm.  All four are outstanding paralegals andbetter people.  We have several attorneyswhose first attorney job was with MU Law. They all have bright presents and brighter futures.  We have a number of newer, younger people whohave benefited our culture and continually add to it.
Thankyou to everyone – employees, clients, friends, professional colleagues — who havecontributed to MU Law’s success over these seven years.   We are very proud to celebrate seven greatyears!

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

The Greater Missouri case has been windingits way through the courts forten years.  The case significantly limitsthe scope of the DOL’s authority to investigate H-1B employers, but was limitedto certain Midwest states.  A decision issuedlast week, VoltManagement, means that the opinion in Greater Missouri could be applied nationally.
Traditionally theDOL has used any allegation of H-1B or LCA violations as probable cause to investigatean H-1B employer’s entire H-1B program.  In Greater Missouri, the Eight Federal CircuitCourt of Appeals held that the DOL’s investigative authority solely was limitedto the allegation.  In other words, ifone H-1B employee filed a complaint with the DOL, the DOL could only investigateany violations against that one H-1B employee. The DOL cannot, under GreaterMissouri, investigate the employer’s entire H-1B program.
The Greater Missouri decision, however, waslimited to matters withinthe 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 NinthCircuit, 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 bindingeither. The ARB has had no occasion yet to revisit the issues raised in GreaterMissouri in light of the change in the law—the Eighth Circuit’s holding. Untilthe issue is again reviewed by the ARB, it remains an open question whether asingle aggrieved party complaint justifies a broad investigation into whether anemployer violated the INA with respect to other H1B employees. I follow theEighth 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 PhysicalTherapy educational continues.  Theprofession had long been governed by a Bachelors degree standard until the late1990s when universities raised their first degree to a master’s degree.  State licensing boards and the FCCPT followedand by the early 2000s the minimum entry degree into the profession was officiallya master’s degree.  In the early part ofthe decade the minimum educational standard evolved again.  It is now a Doctorate of Physical Therapy(DPT).
In concert with theevolution, FCCPT is also evolving their Course Work Tool to their sixth updatedversion (CWT-6).   The CWT-6 is the toolby which educational evaluators equate foreign-educated Physical Therapists.
The FSBPTCoursework Tool is used by credential review agencies to determine if anon-CAPTE educated PT’s education is substantially equivalent to aCAPTE-educated PT. The CWT was revised to reflect the new CAPTE standards forPT and PTA programs taking effect January 1, 2017. Changes in the CWT 6 includean increase in total credits required from 150 to 170 credits and an increasein clinical hours from a minimum of 800 to 900 hours.
Post-graduate workwill be considered in the evaluation. Again from their May 2016 News Brief:
Based on theFramework, the CWT 6 Guidelines for Interpretation will be revised to allowcredential review agencies to consider clinical, direct patient care, workexperience that meets certain criteria towards the CWT 6 required 900 clinicaleducation hours. There are a number of parameters and limitations included inthe Framework to ensure that the practice experience meets a minimal level ofquality. Post-graduate clinical experience hours requirements for physicaltherapists:
1. Completed anaverage of at least 20 hours per week for a minimum of 1,000 hours.
2. Completed 1,000hours in direct patient care.
3. Completed thehours within the most recent three years preceding the application.
4. Completed thehours within a hospital, rehabilitation center, or other facility that employeda minimum staff of at least three (including the applicant) practicing PTsduring the applicant’s clinical experience hours. Federation of State Boards ofPhysical Therapy Page 3
5. PTs employed atthe facility with the applicant must have been available for consultation.
6. At least one ofthe PTs employed at the facility with the applicant must have at least twoyears experience practicing as a PT.
7. Verificationthat the applicant was eligible to practice in the country in which theexperience was completed.
8. Verificationthat the applicant has had no disciplinary action against any professionallicense held for at least two years.
9. Notarizedverification of the work experience provided by a supervisor such as the departmenthead of the physical therapy practice or the director/head of the facility
Additionally, anyuniversity externship conducted under the supervision of a university PTprogram, credentialed residency or fellowship would be an acceptable option tomeet a deficit of clinical education hours. These are rarely available,especially outside of the US, but are an acceptable option. Typically, withinthe US, a participant in a residency/fellowship must be licensed and due to thelicensure requirement, a US residency/fellowship would most likely beunavailable.

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

H-1B SERIES PART THREE: WHEN DOES THE H-1BEMPLOYER’S WAGE OBLIGATION END ?
An H-1B employer’swage obligation when it effects a bona-fide termination.  The employer must take three steps to effecta bona-fide termination.  Once all threesteps are taken, the employer is said to have made the bona-fide termination:(1) The H-1B employer expressly terminated the employment relationship with theH-1B worker; (2) It notified USCIS of the termination so that the petitioncould be cancelled; and (3) It offers to pay or reimburse the worker for thereasonable cost of return transportation to his or her home country.  This three step test is taken from AmtelGroup 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 aresome very limited exceptions to thethree step test outlined in Amtel Group.  The exceptions are found in cases such as: Batyrbekovv. 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 obviousway for an H-1B employer to meet the first step is to send a letter or email tothe H-1B employee notifying him of the termination of employment.  Since the H-1B employer in Dedios waited many months before sendingthe employee a termination letter, the Court found that the wage obligationcontinued until October 27, 2010, in spite of the fact that the employernotified USCIS on June 1, 2010 and offered a flight back to the employee’snative Philippines on May 21, 2010.

H-1B SERIES PART TWO: WHEN DO H-1B EMPLOYERS’ SALARY OBLIGATIONS BEGIN ?

H-1B Series Part Two: When do H-1B employers’salary obligations begin ?
An employer mustpay wages on the date that an H-1B employee enters into employment with theemployer.  An H-1B employee “enters intoemployment” when the employee makes himself available for work or otherwisecomes under the control of the employer, such as by waiting for an assignment,reporting for orientation or training, going to an interview or meeting with acustomer, or studying for a licensing examination, and includes all activitiesthereafter. 
An H-1B worker isautomatically deemed to have entered into employment 30 days after he entersthe United States, or 60 days after H-1B approval if he is already in theUnited States.
The H-1B employeein Dedios met with clients“interviewing” with a potential client of the H-1B employer.  The DOL correctly found that this constituted“entering into employment,” in spite of the fact that the work with theend-client never materialized.

H-1B SERIES PART ONE: WHO CAN PAY H-1B FILING FEES AND PROFESSIONAL FEES ?

H-1B SERIES PART ONE: WHO CAN PAY H-1BFILING FEES AND PROFESSIONAL FEES ?
The H-1Bregulations prohibit an employer from receiving, or the employee from paying,the filing fee for the visa. 20 C.F.R. §655.731(c)(10)(ii). H-1B employers mustalso pay certain other “business expenses” that are connected to the H-1Bprogram.
In Dedios, the court found that the H-1Bemployee’s payment of legal fees, USCIS filing fees, and educational evaluationfees were all “business expenses” connected to the H-1B program.  Therefore when the H-1B employer required theH-1B employee to make these payments, the H-1B employer violated law.
In limitedcircumstances H-1B employees can pay for some costs that may be related to anH-1B employee’s employment.  Thesecircumstances are found at 20 CFR655.731(c)(9)(iii).  

DOL CASE HIGHLIGHTS ALL ASPECTS OF H-1B EMPLOYER LIABILITY

A recent Departmentof Labor decision, DeDios v. Medical Dynamic Systems, Inc.,is a great primer on how employers and attorneys should treat H-1B employeesalary obligations.  The case highlights severalkey issues: when does an H-1B employer’s salary obligation begin, when does itend, whether an employee may pay the H-1B filing and professional fees, and howto treat “benching”.

MU Law is using the DeDios case for a series on H-1B employer wage obligations.  We have also updated our “Top 10things employers should keep in mind in order to stay compliant with the H‐1B visaprocess”.  If you would like acopy of the Top 10, pleaselet us know.

The series will run over the next few blog posts.

UPDATES ON THE VISA BULLETIN

AILA recentlypublished its May“Check-In with Charlie”.  The Check-Inis a Q&A with the Department of State’s Chief of the Visa Control andReporting Division.  Charlie isultimately the person responsible for the publication of each month’s VisaBulletin.  This month’s Check-In providedthese insights into the Visa Bulletin for Beneficiaries of the most commonemployment-based immigrant visas.
India.  The EB-2 date will only advance slowly forthe remainder of the US Fiscal Year, i.e. until October 1, 2016.  The EB-3 date will also move slowly for therest of this fiscal year.
China. EB-2China has a more favorable date than EB-3 China.  This is expected to remain in place for theremainder of the fiscal year.  SinceChina EB-2 is now more favorable than China EB-3, it is expected that EB-3 “downgrades”will end.
<1 ... 48 49 50 51 52 ... 107 >