Healthcare Blog

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible. The H-1B cap likely will be reached in December 2011.

The latest USCIS update is that 49,200 of the 65,000 regular H-1B numbers have been used as of October 28, 2011, leaving 15,800 H-1B visas. Based on prior year’s usage, MU expects that the demand will rise again in November. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

Employees that may need an H-1B visa 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

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.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”. The H-1B Masters Cap has been reached. H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

Staffing companies provide value in industries where there is a shortage of qualified labor because the ability for flexible labor is great. Similarly, high rates of immigration are common in occupations where there are shortages of labor.

It is therefore understandable that many companies that employ large numbers of immigrants are staffing companies. The H-1B visa is the most common visa vehicle for these workers. Healthcare staffing companies often employ Physical Therapists and Occupational Therapists via the H-1B visa.

These companies often then have to move these workers to new geographical locations as dictated by client’s needs. While a new or amended H-1B visa is required when there is a material change in an employee’s job duties, a new or amended H-1B visa traditionally is unnecessary when an H-1B worker moves to a new geographical location.

As Musillo Unkenholt explained in an April 2010 letter to a public inquiry request by the USCIS,

In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.

Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker’s underlying job duties.

In AILA’s notes from an October 5 meeting with the USCIS, the USCIS implied that it may soon require a new or amended H-1B to be filed when there is a change in the worker's geographical location. The USCIS full comments were:

USCIS RESPONSE: This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review. We will take AILA’s views into consideration when finalizing the policy on what circumstances would require an amended petition to be filed with USCIS.

There is no rationale for a change in policy on this issue other than to create additional administrative burdens on H-1B Petitioners. Musillo Unkenholt hopes that the USCIS instead focuses its efforts on those who abuse the immigration system.

The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 41,000 H-1B cap-subject Petitions have been receipted by USCIS as of October 7, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.

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

The US Department of Justice filed suit against Generations Healthcare, a Skilled Nursing Facility, on Friday September 30, 2011. The lawsuit alleges that Generations Healthcare engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on job applicants.

The DOJ’s press release says that its investigation uncovered evidence that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status. These documents were not required of native-born US citizens.

MU Law clients and friends are reminded that US employers have to comply with the Form I-9 when hiring new employees. The Form I-9 identifies a variety of documents that may be used by job applications to prove valid work authorization and identity; it does not mandate that any specific document must be used.

Congressman Jason Chaffetz (R-UT) has just introduced HR 3012, The Fairness for High Skilled Immigrants Act. The bill, if passed into law, would eliminate the per country numerical limitation for employment-based immigrants. The Immigration and Nationality Act generally provides that the total number of employment-based immigrant visas made available to natives of any foreign country in a year cannot exceed 7% of the total number of such visas made available in that year. The bill eliminates this per country percentage cap.

If passed, the Act greatly improves the processing times for Indian and Chinese green card applicants. An unintended consequence of the Act likely would be the slowing of processing for natives of all countries.

The Act is supported by the US Chamber of Commerce, Compete America (a coalition of high tech companies (Microsoft, Google, Oracle, etc.) and various trade groups. The Act has been the primary motivation behind Immigration Voice.

The Act is co-sponsored by House Judiciary Chairman Lamar Smith (R-TX). The bill also adjusts family based visa limits from 7% per country to 15% per country.

Before the Act can become law, it will have to attract more co-sponsors and be recommended for a vote in the US House of Representatives. Once it passes the House, the Act will have to be passed by the US Senate. President Obama almost certainly would sign the Act into law.

The US public television network, PBS, has been airing the documentary, The Learning, on local PBS stations around the country. The Learning tells the tale of four Philippine elementary school teachers as they migrate from their Philippine homeland and into inner-city Baltimore. The teachers laugh, cry, dance, and sing their way through their adventure, all the while balancing their love of their homeland with classrooms of unruly children in one of America’s gravest inner cities.

The compelling nature of the quest would make for a tight 90 minutes of viewing regardless of the subject-immigrants, but the radiance of these women raises the documentary to compelling viewing.

Their desire to help family and friends through remittance payments underscores the entire film. The most gripping scene occurs when one of the teachers, Angel, returns to her homeland and has to explain to her family that the American money “does not grow on trees,” as only a beloved schoolteacher can explain. Angel, like her three colleagues, never stops teaching – the children, her family, and we the viewers.

The film is streaming for free through October 20 on PBS’ website – unfortunately the streaming is only available in America. MU Law highly recommends The Learning for any reader of this Blog and anyone interested in first-person accounts of the modern immigrant experience.