Health Care Blog

On Friday the USCIS announced that the H-1B cap has been reached.  The USCIS will hold a lottery and return any petitions for Beneficiaries who do not win the lottery.  F-1 students who wish to use the “cap-gap” rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period.

The H-1B cap opened on April 1.  Any H-1B cap-subject petition that isreceived on or before April 5 is considered a first day filing.  It is unknown at this time whether the H-1Bcap will be reached on the first day or not. In a March15, 2013 press release the USCIS predicted that,

A little self-indulgence today.  I’m taking a brief time-out from the usual updates on healthcare immigration to note that this blog is seven years old.  The first blog post was on March 27, 2006 with my prior law firm.  At that time few immigration law blogs existed.  The idea of a blog with such a narrow focus seemed a little naive, but thanks to a regular readership the blog has thrived.  

In November 2007 Sam at ILW.com asked if I would like to syndicate my blog through ILW.com, which I immediately agreed to do. Readership doubled.   ILW.com has been a leader in immigration law information and a great supporter.  ILW.com now houses about a dozen blogs.  This one was the second.

The blog regularly attracts 10,000 monthly page views, sometimes doubling or tripling that number.  The current iteration of the blog (since 2009) has attracted about a half million page views, which is a number that I never would have thought was possible in March 2006.  

The best part about the blog has been the people that have connected with me through the blog.  I’ve been in Senate staff meetings and had their senior staff tell me that were regular readers.  AILA’s Annual Conference is always a fun time because there are always a few attendees who read my name tag and tell me that they are regular readers.  Readers are always commenting. They are the blog’s lifeblood. 

Thanks to all of you for your kind words and input.

The blog is accessible through a number of channels.  I hope that you will keep reading and commenting.

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The American Health Care Association (AHCA) outlinedits core principles for immigration reform in a March 12, 2013 PressRelease. 

MU Law has just returned from Washington DC where we, along with a group of about ten stakeholders, met with close to twenty Senators to discuss how healthcare immigration might fit into the forthcoming Senate  Comprehensive Immigration Bill.  The discussions were largely productive with most Senator’s staffs in favor of the bill.  The consensus on The Hill is that the Senate’s version of CIR is in the final stages of drafting and should be released in early to mid-April.

The particulars of the Senate CIR bill are still under lock and key.  The most controversial pieces of the bill have not yet been finalized.  One of the most difficult discussion is on a Guest Worker program.  Most Senators believe that for a Comprehensive Immigration bill to be successful it must contain a way for US employers to sponsor foreign workers who do not fit into the H-1B category.  The debate centers on where to draw the line.  Depending on where the line is drawn a Guest Worker program could qualify a range of healthcare workers for Guest Worker sponsorship.

If the Senate can reach an agreement and a bill is released, the focus will turn to the House of Representatives.  The House has its own group working on a bill.  The conventional wisdom seems to be that the House will take the Senate’s bill and then work on a similar but not identical bill.  If the House can pass a similar CIR bill, then a Conference Committee will be formed.  

The Conference Committee will consist of members of both the Senate and House.  Their goal is to remedy inconsistencies between the two bills.  If that Conference Committee can reach an agreement, the bill will pass both chambers of Congress and presented to President Obama.  The President is expected to sign into law any reasonable bill that is presented to him.

Any H-1B cap–subject petition that is filed between April 1 and April 5 istreated as a first-day filing.  In accord with this information, MU Lawstrongly urges all clients to be prepared to file their H-1B cap-subjectpetitions ASAP. 

MU Law clients are reminded that all H-1B petitions must include a certifiedDepartment of Labor – Labor Condition Application (LCA).  The LCA takes 8days to be certified, and so any H-1B cap-subject petition that is notinitiated at our office by March 24, 2013 will not accepted in this year’s H-1Bcap.

If the USCIS is correct and more than the 65,000 H-1B cap-subject petitionsare reached on the first day, the USCIS will hold a lottery and return any H-1Bpetitions that are not lottery ‘winners’.  The USCIS will also refund theentire H-1B filing fee.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT programafter having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them inorder 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

H-1B petitions that are not subject to the H-1B cap include:
* H-1B extension petitions
* H-1B transfer petitions
* Certain H-1B petitioners for University employers
* Certain H-1B petitions for Non-Profit Research organizations

A Texas IT services firm, Dibon Solutions, has just been indicted by federal authorities, who allege that Dibon unlawfully benched H-1B employees, reports Computerworld.   Six Dibon Solutions employees have been arrested.

Dibon’s business model, which is permissible for US workers, is impermissible for H-1B workers.  The model called for Dibon to place H-1B employees at third-party client worksites, as those third-party clients needed IT services.  When there was no client work, Dibon benched the employees and did not pay the H-1B workers the requisite H-1B wage, which is the alleged illegal act.   

The U.S. Department of Labor requires that H-1B employers pay H-1B workers their full H-1B wage, even if the H-1B worker is not working.  The H-1B employer has the option of terminating the H-1B worker, which dissolves he H-1B employer’s wage obligation.  However, if the H-1B employer wishes to re-hire the terminated H-1B employee, the H-1B employer must file a new H-1B petition with the USCIS and may be required to file a new Labor Condition Application with the DOL. 

Computerworld’s Patrick Thibodeau notes that the last headline-grabbing H-1B visa fraud case involved Vision Systems Group in 2011.  The Vision Systems Group case alleged $7.1 million in violations, but the USCIS quietly settled for $236,250.  It remains to be seen if the Dibon Solutions case will mirror Vison Systems Group or result in more serious penalties.  The fact that six employees have been arrested certainly means that the US believes that these charges are serious.

MU Lawyers Chris Musillo and Cindy Unkenholt will befeatured presenters at the 2013 NPA Global Conference in Las Vegas, NV.  NPA, The Worldwide Recruiting Network is atrade association that connects independent global recruiting firms.  NPA is the oldest recruiting network of itskind, with an international membership of recruiting firms located throughoutEurope, Asia, Australia, Africa and the Americas.  The MU Law presentation focuses onInternational Healthcare Visa Options.  Ifyou are at the Conference please stop by and say hello.