Health Care Blog

This year a mere 9,200 cap-subject H-1B Petitions have been filed through April 29. In prior years we have seen many more H-1B cases accepted as slots were available; in the go-go years of the 2000s, the H-1B cap was reached on the first day.

This year’s paucity of H-1B Petitions provides compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers’ salaries. That argument just does not jibe with what is actually happening.

If H-1B visa labor was being used primarily to lower US workers salaries, the H-1B filing numbers wouldn’t be impacted to any meaningful degree. Why? Because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less. This logic is straightforward.

Yet, this year we’ve seen a dramatic downtick in H-1B visas filed in industries like Information Technology and Finance. Meanwhile industries with continued staffing shortages, such as healthcare and teaching, continued to file H-1B Petitions. If the H-1B program was being used to lower salaries, why aren’t the IT and financial industries continuing to file H-1B petitions? Are these industries not interested in cutting costs?

Critics of the H-1B system fail to acknowledge just how well the system actually works. In robust times, the H-1B system allows growing companies to attract more workers from overseas when they can’t fill those jobs with US workers. In down times, when jobs are few, the market does what it is supposed to do and fewer H-1B job offers are made.

If Congress really wants to reform the H-1B process, it ought to eliminate the arbitrary quota and just let the market sort out the numbers question. Congress also ought to give non-bachelor degree occupations with well-documented staffing shortages, such as nursing, access to the H-1B program.

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 8,000 H-1B cap-subject Petitions have been receipted by USCIS. This is much lower than in recent years and likely reflects the fact that while the US economy has improved in the recent months, it is not nearly as robust as it was in the middle part of the last decade.

The USCIS has receipted in about 6,000 Masters Cap H-1B Petitions. To put this in perspective, in FY 2011, which began April 1, 2010, the USCIS has receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there was about 40,000 H-1Bs receipted in by USCIS through May 1, 2009. For the prior three fiscal years (FY 2006-08), the H-1B cap was reached on the very first day of filing.

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

For three years the H-1B demand has decreased. This should put paid to the idea that H-1B workers are used to drive down US worker’s wages. If H-1B workers were used to drive down wages, H-1B demand would remain consistent in a decreasing economy.

The Bulletin also included a lengthy explanation and prediction of future month’s expected dates:

“Dare to be great nurses… Dare to build a better Philippines and a better America.” This was US Envoy to the Philippines Henry Thomas’ challenge to the graduating class of Angeles University Foundation’s College of Nursing on Saturday.

While his challenge was clear, his views on the likelihood of the retrogression were less so. “All I can say is, clearly, there’s a demand in the US but also, as President Obama has said, we have nursing graduates in the US who also have to finish their examinations and obtain jobs.”

This wishy-washy statement perfectly captured President Obama’s inconsistency and lack of focus on the necessity of alleviating the retrogression. On one hand, the President has said many of the right things on making an immigration system that is fair to all – American patients, American healthcare staff, and foreign-trained healthcare staff. On the other hand, his lack of action and lack of leadership has frustrated all stakeholders.

The Department of State has updated their Foreign Affairs Manual (FAM) to reflect the fact that B1/B2 applicants ought to be given visas to come to the US to take the NPTE. MU encourages all B1/B2 applicants who had been denied B1/B2 visas for this reason to re-apply for a B1/B2 interview.

As we mentioned in our last MU update, all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US. Failure to prove nonimmigrant intent remains a valid reason for the Consular/Embassy official to deny the B1/B2 application.

Updated FAM:

9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant

(CT:VISA-1635; 03-31-2011)

The requirements for classification as an H-1B nonimmigrant professional

may or may not include a license because States have different rules in this

area. If a State permits aliens to enter the United States as a visitor to take

a licensing exam, then USCIS will generally require a license before they will

approve the H-1B petition. However, some States do not permit aliens to

take licensing exams until they enter the United States in H-1B status and

obtain a social security number. Therefore, a visa should not be denied

based solely on the fact that the applicant does not already hold a license to

practice in the United States.

As many MU friends and clients are aware, US Embassies have been denying PT applicants a B1/B2 visa, if the applicant has sought to come to the US to sit for the NPTE. The denials have been based on the Embassy mistakenly belief that taking the licensing exam is not a valid reason to enter the US on a B1/B2.

MU just has learned the Department of State’s HQ office in Washington DC is in the process of issuing a revised Guidance to the US Embassies, including Manila. The Guidance should correct this mistaken policy.

Please keep in mind that all applicants will still need to prove non-immigrant intent, i.e. that the applicant maintains a non-US residency and intends to leave the US at the conclusion of their visit to the US.

The Department of State has told AILA that because of decreasing demand for EB-1 visa numbers, the EB-2 category will be given at least 12,000 additional visa numbers. The 12,000 numbers will largely be given to Indian EB-2 applicants. EB-2 Chinese natives may also be positively impacted by this news.

The May 2011 Visa Bulletin, which should be released in mid-April 2011, should reflect this news.

The EB-2 category is appropriate for positions that require a Masters Degree or a Bachelors Degree and five years of progressive experience and typically includes Doctors, Physical Therapists, Occupational Therapists, and other professions that require advanced degrees.

Sometime in 2011, Congress may wish to revisit the US’ immigration policy. MU has consistently called on Congress to raise the artificial limits on true shortage occupations, such as Registered Nursing. At present, it takes a fully-qualified foreign-trained Registered Nurse about six years to obtain an immigrant visa. These nurses pass identical licensing exams to US nurses. They also must pass English fluency exams.

The Department of Labor continues to point to nursing as one of the occupations in the shortest supply.

Now, comes a March 17, 2011 New England Journal of Medicine research paper confirming that Fewer Nurses Means a Higher Risk of Death. The study, authored by well known researchers such as Dr. Peter Buerhaus, cites hundreds of thousands of admissions and nurse work shifts. The researchers found that a patient’s risk of death increased by about two percent for each work shift that was what the researchers categorized as understaffed.

The study was also subject of a recent Scientific American podcast, which is freely available for download.

The US’ immigration policy is woeful on so many fronts, but liberalized nurse visa rules should be a simple one to fix because the benefits to Americans would be enormous.