Musillo Unkenholt Law | Healthcare Immigration Blog

December 8, 2015
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H-1B AMENDMENTS REQUIRED BY JAN 15, 2016

H-1B employers are reminded of theUSCIS’ revised FinalGuidance in the Simeio Solutions decision. Although the decision was not to beapplied retroactively, H-1B amendments still must be filed in certain instances:

Date of H-1B employee’s move	Action
On or before April 9, 2015	No amended H-1B is needed.
April 9 – August 19, 2015	Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015	Must file an amended H-1B once LCA is certified.

Accordingly, MU Law advises that if anemployee moved between April 9 – August 19, 2015, an H-1B Amendment MUST befiled before January 15, 2016.

The revised Final Guidancereconfirmed that an amended H-1B petition is NOT required if the geographicalmove is within an “area of intended employment.” An “area of intended employment”is generally the same as a Metropolitan Statistical Area. Likewise, anamended H-1B petition is NOT required if the H-1B employee is attendingtraining sessions, seminars, conferences, etc. of a short duration.

December 4, 2015
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NCLEX NUMBERS LEVELING AFTER YEARS OF DECLINE

The latest NCLEX Statisticsshow that the decline in internationally-educated nurses taking the NCLEX examinationhas abated. Through the third quarter of2015, 16,685 firsttime internationally-educated nurses have taken the NCLEX. That is up slightly from 2014 when 15,207 firsttime internationally-educated nurses had taken the NCLEX through the thirdquarter.

The pass rates offirst time NCLEX internationally-educated nurses are rising slightly too. In 2014 28.8% of first time internationally-educatednurses passed the exam. In 2015, thathas risen to 31.5%. All told, about4,500 first time internationally-educated nurses are annually taking andpassing the exam. Another 2,000-2,500 orso repeat test takers are also annually passing the exam. Together, almost 7,000 internationally-educatednurses are annually taking and passing the exam.

These numbers are considerablylower than the peak years of last decade. In 2006, 20,907 internationally educated RNs passed the NCLEXexam. In 2007, the volume jumped; 22,827 internationally educated nurses passedthe NCLEX exam. With the onset of retrogression, 2008 saw a slight decline;18,905 internationally educated RNs passed the exam.

November 30, 2015
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NEARLY TWO-THIRDS OF BABY BOOMER NURSES CONSIDERING RETIREMENT

AMN Healthcare, oneof the largest healthcare staffing companies in the US, has recently issued asurvey that shows that almost two out of every three baby boomer nurses are contemplatingrecruitment. A summaryof the survey is on the Staffing Industry Analyst’s webpage.

The main take-away:

Of those nursesover 54 who are considering retirement, 62% plan to retire within the nextthree years. Additionally, 21% of nurses over age 54 said they will switch topart time work.

Paralleling thismassive downturn in US healthcare workers is an expected boom in America’s demandfor healthcare services. The number ofuninsured hasdropped by millions since the passage of the Affordable Car Act(Obamacare). Foreign labor must be partof this answer. Unfortunately thecurrent immigration scheme makes it very difficult to navigate a reasonable strategy.

November 16, 2015
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SEN. GRASSLEY RE-INTRODUCES RESTRICTIVE H-1B BILL

Sens. Grassley(R-IA) and Durbin (D-IL) have reproposed a bill aimed at curbing H-1B usage. The bill creates an H-1B system that greatlyexpands the regulatory environment surrounding H-1B visas. Sen. Grassley’s bill makes a number of changes to the H-1B system.

Sen. Grassley believesthat the H-1B visa is used to replace US workers. He has long cited a 2008 USCIS Report as evidence of fraud in theH-1B program. To date, exactlyzero prosecutions have resulted from this flimsy report.

Sen. Grassley proposedbill sets forth a system where employers would have to registerand re-register with various government agencies. It would limit certain employers from hiringH-1B workers and increase enforcement.

Sen. Grassley’sbill will surely restrict H-1B workers. It is not clear that it will help US workers. Anycredible study points out that the H-1Busage mirrors the US employment rate. TheEconomist has picked up on this finding. A better approach is to ask whyUS workers no longer move for better opportunities, since most H-1B employer’svalue H-1B workers geographical flexibility.

Source: https://www.census.gov/hhes/migration/data/cps/historical/Figure%20A-1.2.png

November 10, 2015
Uncategorized

ANALYSIS OF THE DECEMBER 2015 VISA BULLETIN

The Department of State has just issued the December 2015 Visa Bulletin. Here
is MU Law’s analysis of this latest Visa Bulletin.

December 2015 Visa Bulletin

Final Action Dates

Employment- Based	All Chargeability Areas Except Those Listed	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01FEB12	01JUN07	C	C
3rd	01SEP15	15APR12	22APR04	01SEP15	01AUG07

MU Law Analysis
All: No change from Nov 2015 Visa Bulletin, other than a one month improvement in EB-3.
China: EB-2 did not change. EB-3 progressed a few months from Nov 2015 Visa Bulletin, which was 01JAN12.
India: EB-2 jumped again. Two months ago it was 01MAY05. In Nov 2015’s Visa Bulletin it was 01AUG06. This trend may continue. EB-3 continued its steady but slow progress.
Mexico: One month gain in EB-3.
Philippines: EB-3 moved ahead six weeks. MU Law believes that Philippines EB-3 will steadily move forward in the coming months.

Dates of Filing

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01SEP15	01OCT13	01JUL05	01SEP15	01JAN10

MU Law Analysis

The Dates of Filing chart did not change from October or November 2015. This is not a surprise. The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin.
Our analysis is the same as our explain in our October 10, 2015 blog post.

November 9, 2015
Uncategorized

USCIS E-FILING: HOW TO WASTE A BILLION DOLLARS

Today’sWashington Post outlines the USCIS’attempts to move out of the paper age and into the electronic age. After 10 years and a $1 billion, the USCIShas one form on-line, the I-90,which is used to renew a Green Card. Forthose unfamiliar with the Form I-90, it is comparable to a driver’s licenserenewal form. Ninety-nine other forms remainonly available via paper filing.

The project wasoriginally supposed to be completed by 2013 at a budget of a half-billiondollars. The USCIS now expects the programto be on-line in 2019 at a cost of $3.1 billion, although if history is anyguide it will be years beyond that at a even greater costs.

Part of the problemis the “gotcha” nature of the forms themselves, which is indicative of a tone-deafUSCIS. The forms often ask irrelevantand unnecessary questions, aimed presumably at tripping up users.

Instead of focusingon the e-filing initiative, the USCIS chooses to waste time and resources. For instance, the Simeio Solutions decision in April adds tens of thousands ofpetitions to the USCIS without any legal necessity. The entire goal of the decision seems to beto make life difficult for H-1B workers who switch job locations. There is no evidence that any legitimatepolicy goal was achieved by the decision. If anything the decision and the later multiple USCIS Memos thatattempted to clarify the decision, arecontrary to PresidentObama’s attempts to modernize US immigration policy and align it with thereal world.

A good programmanagement team would start with the essential questions before building outquestions that are not core to the adjudication of the process. A good program management team would engageusers of the forms – immigrants, companies, immigration attorneys.

Until thesestakeholders are regularly engaged, skeptics will continue to criticize. Until the administration makes it a priorityto hold USCIS officials accountable for aimless policy and bloated budgets, theUSCIS will continue its bumbling nature.

October 30, 2015
Uncategorized

SIXTEEN HOUSE REPS ASK DHS AND DOS FOR ANSWERS ON VISAGATE

Earlier this week,sixteen CongressionalHouse representatives sent a letter to Sec. Jeh Johnson (DHS) and Sec. JohnKerry (DOS) for answers related to September’s bumbled visa bulletin roll-outthat resulted in a last minute revised Visa Bulletin, just days before theOctober 1 live date.

This blog producedseveral articles on the series of events, which has been dubbed “Visa Gate” on Twitter.

Sept. 9 – NEWVISA BULLETIN ALLOWS EARLY FILING OF I-485s

Sept. 16 – MORENEWS AND ANALYSIS ON THE NEW VISA BULLETIN

Sept 26 – REVISEDVISA BULLETIN REVEALS TONE DEAF USCIS

Oct 10 – INDEPTH ANALYSIS OF THE NOVEMBER 2015 VISA BULLETIN

The House Member’sletter asks for the estimated number of applicants who were impacted by thelast minute revised Visa Bulletin.

Going further, theyask for DHS to consider providing EAD cards and allowing portability to thosewith approved I-140s. Both concepts wererecentlyendorsed by AILA.

October 27, 2015
Uncategorized

HEALTHCARE STAFFING EXPECTED TO GROW BY 17% IN 2016

Staffing IndustryAnalysts USStaffing Industry Forecast predicts that US healthcare staffing will growby 17% in 2016. All four healthcare staffingsub-segments: -travel nursing, per diem nursing, locum tenens and allied health,showed double digit growth in 2015.

Reasons for theincrease in staffing are many, including tightening US labor supply and Obamacareallowing previously uninsured patients to avail themselves of healthcare services. More details on the report areaccessible on their webpage.

MU Law has seen greatly increased demand for foreign-trained nurses, and Physical and Occupational Therapists in 2015, confirming this study’s conclusions.

October 21, 2015
Uncategorized

A PRIMER ON HOW AN EMPLOYER MIGHT WIN AN H-2B CASE FOR CAREGIVERS

The H-2B visa is avisa used for temporary or seasonal workers. As BALCA explained ina case published earlier this week, Inthe matter of: Absolute Home Care, the H-2B is not a flexible visa. The H-2B is not a viable option for healthcareemployers seeking to fill long term staffing shortages. An H-2B can only be used to fill staffing shortages,such as a one-time occurrence, seasonal need, peakload need or intermittentneed.

In the matter of: Absolute Home Care theemployer, Absolute Home Care, asked the DOL to certify that it had a need for twentyCaregivers for nine months, from October 2015 – June 2016. In support of its claim, Absolute Home Care,provided the DOL with evidence that it traditionally had more clients in theprior winter (January – March 2014), than in the summer months.

This argument thisdid not convince the BALCA judge for at least two reasons. First, the evidence was that the need was forthree winter months, not the nine months requested in the Application. Second, Absolute Home Care asked for 20Caregivers without documenting a single client contract substantiating the needfor the period between October 2015 – June 2016.

One bright spot isthat the judge’s opinion allows the reader to “reverse engineer” how an H-2Bmight be approvable. A successful casecould be made if the employer can show past practice evinces a seasonal need,along with specific forward-looking contracts detailing a temporary need forthe workers.

October 14, 2015
Uncategorized

USCIS TO PUBLISH ITS OWN VISA BULLETIN

USCIS has justannounced that it will publish its own Visa Bulletin Dates for Filing Visa Applications (Chart B). The USCIS’ Dates forFiling Visa Applications will be used in order to determine ifimmigrant visa applicants can file Adjustment of Status Applications.

USCIS expects thatthis chart will be published approximately one week after the publication ofthe Department of State’s Visa Bulletin. The November 2015 is expected to be published shortly.

The Department ofState’s Application Final Action Date (Chart A) chart will be used to determine whenindividuals may file their adjustment of status applications.

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