Musillo Unkenholt Law | Healthcare Immigration Blog

March 28, 2016
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NEW USCIS MEMO: PORTING YOUR I-485 UNDER AC21

On March 18, 2016 the USCIS issuednew guidance regarding when a foreign national can port his/her I-485. Under the American Competitiveness in theTwenty-First Century Act (AC21) a foreign national can change his/her employeror job during the green card process once the I-485 has been pending for 180day or more.

When changing positions, the greencard applicant and their new employer, must file a letter with the USCISconfirming the new employer is taking over the green card case, agrees to paythe prevailing wage, and that the new position is the same or similar to theposition described in the green card application.

The USCIS will consider thetotality of the circumstances when determining if the green card job and thenew job are the same or similar. Specifically,the March 18 memo describes how Immigration Officers can review the occupationcodes assigned to both jobs by the Department of Labor when determining if thetwo jobs are the same or similar.

Evidence that the positions are thesame or similar can include:

The job duties ofboth positions;
The skills,expertise, education, training, licenses or certifications specificallyrequired to perform each job;
The wages offeredfor each job; and
Any othermaterial and credible evidence relevant to the determination.

Green card applicants can also porttheir I-485s when, in their new position, they are primarily responsible formanaging the same or similar function of their original job. For example, if a PT is promoted to Senior PTand supervises other PTs and PTAs. It isalso acceptable for the applicant to manage workers in a different occupationif the change in position is a normal career progression. For instance, if an OT is promoted to RehabManager, the OT may be supervising other OTs as well as OTAs, PTs, PTAs, SLPs,and others.

March 22, 2016
Uncategorized

LAST CHANCE FOR 2016 H-1Bs

The H-1B cap requires that all H-1B petitions are received at the USCIS’ California Service Center or Vermont Service Center by Thursday April 7, 2015. Below are some key points to keep in mind about this year’s H-1B cap:

-The USCIS makes no accommodation for delays caused by couriers. Accordingly, MU Law will file the vast majority of its H-1B petitions on March 31 for delivery by April 1, which is the first day that H-1B petitions are accepted.

-Premium Processing Service (PPS) may not start until May 11, 2016, although the USCIS could start PPS earlier, depending on the volume of petitions that are received.
-Last year it was until June before most H-1B lottery winners and losers found out about the outcome of their lottery selection.

March 17, 2016
Uncategorized

HISTORICAL H-1B USAGE AND AN EDUCATED GUESS ON HOW MANY WILL BE FILED THIS YEAR

This year’s H-1Bfiling date of April 1, 2016 is coming fast. MU Law predicts thatH-1B petitioners certainly will file in excess of 200,000 petitions during theH-1B cap window of April 1-7, 2016. Last year’s record filingtotal of 233,000 will likely be exceeded. This estimate is based on conversation with clients,other employment-based immigration attorneys, and economictrends, such as the tiny unemployment rate inIT.

When the USCIS receives more H-1B petitions than slots availableit holds an “H-1B lottery”. Last year, the USCIS held an H-1B lotterybecause it received over three times as many H-1B petitions as slotsavailable.

If you are considering filing an H-1B cap-subject petition, MU Lawurges you to begin that process now.

Many healthcare professions ordinarily qualify for H-1B status,including Physical Therapists,Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.

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

Employees that need a “cap-subject” H-1B include:

* International students working on an EAD card underan OPT or CPT program after having attendeda U.S. school

* International employees working on a TN may need an H-1B filedfor 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

* Prospective international employees currently living abroad

Past H-1B Demand:

Year:	H-1B Cap Numbers:	Date H-1B Cap Reached:
H-1B 2003 (FY 2004)	65,000	October 1, 2003
H-1B 2004 (FY 2005)	65,000	October 1, 2004
H-1B 2005 (FY 2006)	85,000	August 10, 2005
H-1B 2006 (FY 2007)	85,000	May 26, 2006
H-1B 2007 (FY 2008)	85,000	April 1, 2007
H-1B 2008 (FY 2009)	85,000	April 1, 2008
H-1B 2009 (FY 2010)	85,000	December 21, 2009
H-1B 2010 (FY 2011)	85,000	January 25, 2011
H-1B 2011 (FY 2012)	85,000	November 22, 2011
H-1B 2012 (FY 2013)	85,000	June 11, 2012
H-1B 2013 (FY 2014)	85,000	April 1, 2013
H-1B 2014 (FY 2015)	85,000	April 1, 2014
H-1B 2015 (FY 2016)	85,000	April 1, 2015
H-1B 2016 (FY 2017)	85,000	April 1, 2016 (expected)

March 14, 2016
Uncategorized

OPT STEM EXTENSIONS NOW 24 MONTHS

On March 11, 2016 the USCIS published therules of a new, expanded STEM Extension OPT program. The new STEM Extension will go into effectTuesday, May 10, 2016. Among other changes,the program extends the length of the STEM Extension from 17 months to 24months.

STEM OPT Extensions are available to studentscompleting a degree in the science, technology, engineering, or mathematicsfields at US colleges or universities in F-1 status. A list of degrees eligible for STEMExtensions is available on the ImmigrationCustoms and Enforcement website.

In August 2015, the US District Court judgeruled that the USCIS STEM OPT Extension program was invalid because the USCIShad not followed the proper procedure when creating the STEM Extension program in2008. The federal judge allowed the USCIS time to re-create the programusing the proper procedure.

The USCIS has now re-created the STEMExtension program using the proper procedure and has extended the length of theSTEM Extension from 17 months to 24 months. The new STEM Extension rules also include the following:

· Employers participating in the STEM Extension program mustincorporate a formal training program that includes concrete learningobjectives with proper oversight.

· All STEM employers taking part in the program must alsoparticipate in e-verify.

· Students must work at least 20 hours per week per employer toqualify for STEM Extensions.

· Students are now permitted a total of 150 days aggregateunemployment while on OPT. Students continueto be permitted 90 days aggregate of unemployment during the initial period ofOPT. Students are now permitted anadditional 60 days of unemployment during the STEM OPT Extension period.

The Immigration Service has also created a STEM OPT Hub websitewhich includes resources for schools, students, and employers to assist in thetransition from the old STEM OPT program to the new STEM OPT program.

March 9, 2016
Uncategorized

APRIL 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State has just issued the April 2016 Visa Bulletin. This is the seventh Visa Bulletin of Fiscal Year 2016.

April 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	01SEP12	08NOV08	C	C
3rd	15FEB16	15AUG13	08AUG04	15FEB16	01MAY08

MU Law Analysis

All Other: The EB-2 has been current for many years. The EB-3 remains positive, gaining 6 more weeks this month. These dates continue to be very favorable. We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 progressed by one month. EB-3 has progressed by about two years in just the last few months. This is great news for this category. EB-2 continues to lag behind EB-3. The DOS expects the EB-2 and EB-3 to re-balance at some point in the future.

India: EB-2 moved ahead about 3 weeks to November 2008. Six months ago it was 01MAY05. This represents a three-and one half year movement in just six months. This trend may continue. EB-3 moved three weeks. Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead almost two more months. 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 this spring or early summer.

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.

March 8, 2016
Uncategorized

IS DONALD TRUMP FOR OR AGAINST THE H-1B ?

Thiswas first posted on the AAIHRblog.

The H-1B is the mainUS professional visa. H-1B visa demandfollows the US unemployment rate. When the US unemployment rate is high and manyUS workers are out of work, H-1B demand is low. When the US unemployment is low and many US workers are employed, H-1Bdemand is high.

Last year 232,000H-1B petitions were field on the first and only day of the H-1B capwindow. This resulted in an H-1B lottery, wherebyUSCIS rejected 64% of otherwise approvable H-1B petitions. On the other hand, at the height of the USrecession in 2010 it took about300 days for the H-1B cap to reach the statutory limit of 85,000.

The tech industryis the largest user of H-1B visas. Stories of H-1B abuse plague the industry. Notably Disneyhas been sued by American workers who claim to have been forced to trainthe H-1B replacements.

The healthcareindustry uses H-1B visas too, although at much smaller rates that tech in spiteof the fact that the shortagesof US labor in these occupations are greater than in IT. Physical Therapists and Occupation Therapistsqualify for theH-1B. The US Department of Labor hasrepeatedly found that the importation of these Registered Nurses and PhysicalTherapists does not negatively impact the working conditions or salaries of USworkers.

With eachRepublican Presidential caucus or primary, DonaldTrump is inching closer to the Republican nomination. His positon on the H-1B visa appears to befluid. For months he has generally disfavoredany increase in visa quotas. Inparticular he has aimed his glare at the alleged abuses in the ITindustry.

It was newsworthythen at the Thursday March 3 debate when Trumpannounced, “I’m changing,” in response to a question about his H-1B position. After being pressed by moderator Megyn Kelly,Trump fleshed out his new position, “I’m softening the position because we haveto have talented people in this country.” This statement appeared to indicate the Trump would be in favoring ofallowing foreign-born US college graduates a path to work authorization.

The “softening” ofhis stance is not without controversy. In response, it appears that Trumpmay now have dialed back his “softening” and is now staking a middle position. Shortlyafter the debate, he reiterated his promise to end “abuse” in the H-1B system.

Perhaps Trump isplaying politics. One view is that Trumpmay think that he has the Republican nomination in hand and is therefore tackingtoward the center. This is astrategy that Republicans have used for a generation, ever since it was famouslyexecuted by then-candidate Richard Nixon.

A move to thecenter may mean that Trump would be willing to work with a healthcare industrythat has giantsupply shortages on the horizon and little hope to curing the shortageswith US labor.

March 1, 2016
Uncategorized

MU LAW COMMENT TO USCIS: ALLOW H-1Bs WHEN APPLICANT HAS HEALTHCARE WORKER CERTIFICATE

The USCIS and Department of Homeland Security recently issued a lengthy proposed rule.As per US law, USCIS and DHS had to ask the public for our comments about theirproposed rule. Many lawyers and the public commented on the proposedrule.

The proposed rule covers many areas. Musillo Unkenholt’scomments focused on one area: asking DHS toallow one-year H-1B approvals in instances where the alien does not hold alicense, but does hold a Healthcare Worker Certificate.

The most common Healthcare Worker Certificates are Visa Screen, FCCPT Type 1 Certificates and NBCOT Certificates.

Click here to read our complete comment

The Musillo Unkenholt comment is also on Regulations.gov.

February 22, 2016
Uncategorized

THE US IS RUNNING OUT OF NURSES

The Atlantic has a longform articledetailing the current US nursing shortage in which it highlights that 1.2million nursing positions will be unfilled in the next five years. While nursing shortages have existed in theUS for most of the last forty years, this one is going to be different. The US nurse supply has been artificiallyinflated since the start of the recession. Now that the recession has abated, nurse retirement numbers are spiking. Musillo Unkenholt saw more demand forforeign-trained nurses in 2015 than we had in the whole of 2009-14.

The reasons for thecurrent US nursing shortage are many:

Baby BoomGeneration Demand. The US Baby Boomgeneration, those born 1946-1964, has reached an age where they willincreasingly demand nursing services. AsThe Atlantic points out:

Today, there are more Americans over the age of 65 than at any other time in U.S. history. Between 2010 and 2030, the population of senior citizens willincrease by 75 percent to 69 million,meaning one in five Americans will be a senior citizen; in 2050, an estimated 88.5 million people in the U.S. will be aged 65 and older.

Aging NursingWorkforce. Out of the 3 million USnurses, one million are over age 50 and will be expected to retire in the next10-15 years.

Few NurseEducators. Nursing Ph.D. programs havebeen unable to attract nursing faculty. These nurses Ph.D’s have traditionally made up large numbers of nursingschool faculty. Part of the reason forthis is that a Bachelor nursing graduate is usually offered a job atgraduation, thus reducing that graduate’s incentive to seek out graduatenursing education. Without a dramaticincrease in nurse faculty, it will be impossible for the US to supply enoughnurses to meet the demand.

DistributionChallenges. Some of the American nursingproblem stems from the lack of mobility ion the nursing force. Nurses are often unwilling to leave theirhometowns for jobs in rural areas or high-nurse demand areas, even if thosepositions pay better.

Lack ofForeign-Nurses. Because of a terriblythough-out US immigration policy, it takes a nurse from the Philippines manyyears to legally obtain a visa, in spite of the nursing shortage. The Philippines has traditionally been thegreatest supplier of US nurses. Thestory is even worse for India, which would certainly be able to supply the USwith many nurses if it did not take 10 years for a fully-qualified nurse toobtain a US visa. As a result of thelack of US nursing visa options,foreign-trained nurses have declined sitting for the US licensing exams.

Ten years ago theUS congress passed a special EX visajust for occupationsthat were found to be nationally short by the Department of Labor. These occupations were placed on the DOL’sSchedule A. By placing an occupation onSchedule A, the Department of Labor finds that the importation of workers inthe occupational classification will not negatively impact existing US labor.

Only twooccupations are on Schedule A – Registered Nursing and Physical Therapy. Does it not stand to reason that there oughtto be a better immigration program to allow these badly needed workers entryinto the US?

February 17, 2016
Uncategorized

LOOKING AT THE VISA BULLETIN CRYSTAL BALL

Employment Based Green cards areprocessed by “priority date” in a FIFO (first-in, first-out) manner. A nurse’s “priority date” is established onthe day that the nurse’s immigrant visa petition is first filed. A nurse retains her priority for the rest ofher life, even if she files a later Green card case with a subsequent employer.

From 2005-2008 the industry sawmassive numbers of nursing petitions. Thesepetitions were fueled by: (a) enormous demand for foreign-trained nurses and(b)a special piece of legislation that exempted nurse green cards from theoverall green card quota in 2005-2006. The special legislation ended in 2007.

Many of these nurses received theirgreen cards and are now working in the US. However a large number of nurses did notreceive their green cards because in 2009 the demand slowed for foreign-trainednurses and because retrogression spiked.

From 2009-13 there was a paucity ofnurse immigration petitions. Starting in2013 we saw a rebound for foreign-trained nurses. Industry leaders sought out nurses withpriority dates from the 2005-2008, who had never received their US green cards. Since 2013 the industry has seenthousands of nurse’s green card petitions “re-filed” using the 2005-08 retainedpriority date.

My sense is that the population ofnurses Filipino nurses who can retain their 2005-2008 priority dates are closeto exhausted. Accordingly, I expect thatonce the Philippine EB-3 priority date Visa Bulletin reaches 2010, it willquickly accelerate through to at least 2013 and perhaps to 2015.

Nurses born in countries other thanIndia, China, or the Philippines (Rest Of World) have no visa retrogressionproblem. Green cards are being issuedfor these nurses in under one year, as demand for the Worldwide nurses has yetto impact the Visa Bulletin. Because of the calculus involved in the VisaBulletin computation, I expect the ROW EB-3 Visa Bulletin to be near “current”for the foreseeable future.

February 11, 2016
Uncategorized

DOS PROJECTS FORWARD MOVEMENT IN APRIL 2016 VISA BULLETIN

In the mostrecent Visa Bulletin, for March 2016, the Department of State madeprojections for potential monthly movement in all categories. Notably the DOS projects forward movement inall Employment-based categories for the April 2016 Visa Bulletin.

Here are the DOSprojections. They have included a standard disclaimer, which we have included at the end ofthe excerpt.

EMPLOYMENT-based categories (potentialmonthly movement)

Employment First: Current

Employment Second:

Worldwide: Current

China: Up to five months.

India: Up to three months.

Employment Third:

Worldwide: The rapid forward movement of this cut-off dateduring the past ten months should generate a significant amount of demand fornumbers. When such demand begins to materialize it will be necessary to limitmovement of this cut-off date.

China: Up to five months.

India: Up to one month.

Mexico: Willremain at the worldwide date.

Philippines: Up to four months.

The above projections for the Familyand Employment categories indicate what is likely to happen on a monthly basisthrough June based on current applicant demand patterns. Readers should neverassume that recent trends in cut-off date movements are guaranteed for thefuture, or that “corrective” action will not be required at somepoint in an effort to maintain number use within the applicable annual limits.The determination of the actual monthly cut-off dates is subject tofluctuations in applicant demand and a number of other variables.

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