Healthcare Blog

The Department of State’s point man on the Visa Bulletin has confirmed for AILA that India and China EB-2 will retrogress to August 15, 2007, a dramatic retrogression from the recent progression of China and India EB-2 number. Charlie Oppenheim, Chief, DOS Immigrant Visa Control & Reporting, says that demand for the EB-2 numbers is high due to the progression of EB-2 dates from November 2011 – April 2012.

USCIS has informed Mr. Oppenheim that they will continue to “preadjudicate” adjustment applications received through April. The “preadjudicated” cases will be held by the State Department in the “pending” demand file. That way, the cases will be ready in October, or earlier, if the current number use pattern changes, and they are needed at the end of this fiscal year to assure utilization of the full employment-based permanent resident visa allocation.

The Department of State historically has progressed dates to stimulate demand in the visa numbers. That practice came under some criticism during the Summer 2007 “VisaGate” incident when the DOS progressed to ‘current’ all categories in response to the USCIS’ inability to approve any I-485, Applications for Adjustment of Status. This flooded the USCIS with 300,000 Applications in the Summer 2007, forcing USCIS to begin approving I-485 Applications. Since VisaGate the progression of visa number has been measured, until this accelerated EB-2 progression began in November 2011.

The Fiscal Year 2013 (FY2013) H-1B cap season will begin on April 1, 2012. Last year (FY2012), the H-1B cap moved very slowly -- only 8,000 H-1Bs were received in April 2011. The slow pace continued through the spring and summer. As the US economy improved, the H-1B pace quickened. The H-1B cap was reached in November 2011.

On a histocial basis, FY2012 moved very slowly. In FY 2011, which began April 1, 2010, the USCIS had receipted about 20,000 H-1Bs through May 1, 2010. In FY 2009, there were 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.

It is unknown what the FY2013 H-1B demand will be. In speaking with some clients, MU expects the H-1B cap to move quicker than last year. However, MU expects that the H-1B cap will remain open until at least mid-summer.

If you are considering filing an H-1B cap-subject petition, MU urges 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 visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

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

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

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

MU receives many emails about the nurse immigration process and retrogression. We have prepared this article explaining these issues.

Part One

Registered Nurses must clear many hurdles before they are eligible for a US immigrant visa (Green card). The nurse must get into a good university and work hard to take and pass their exams. They must then have their education evaluated against the American standard.

Once that happens the nurse must pass the US licensing exam: the National Council Licensure Examination (NCLEX). This is the same examination taken by thousands of US nurses every year. Foreign-trained nurses must also take and pass an English fluency examination. All of these items must be evaluated by an independent organization, the Commission on Graduates of Foreign Nursing Schools (CGFNS).

Lastly, the nurse must find a US employer who is willing to extend an offer of employment where the wage is not less than the average of similarly employed nurses. Once the offer is extended and the nurse accepts the offer, she is fully eligible to have a US EB-3 green card filed on her behalf.

The lawyer works with the nurse, the employer, and the recruiter to properly file a green card petition. This establishes the nurse’s “priority date.” The green card petition is reviewed by a qualified USCIS officer who may ask for further evidence in the event that there are additional data needed to approve the petition. Finally, the EB-3 green card petition approved!

And then the nurse waits. And waits. And waits. Presently the US Consulates and Embassies are allowed to issue an EB-3 green card to a nurse whose green card petition was filed with a priority date from early 2006 – essentially a six year wait.

Musillo Unkenholt is pleased to announce that we will be moving our office. Effective Monday February 27, 2012 our new address will be:

Musillo Unkenholt, LLC

205 West Fourth Street, Suite 1200

Cincinnati, OH 45202

We are moving into the historic Cincinnati Textile Building. As a result of the move we will be clsoing our office at 2PM ET on Friday and we also expect to be closed on Monday.

Our phone number, fax number, and email addresses will remain the same. If you are in the Cincinnati area, please let us know; we would love to show off our new larger modern office!