Health Care Blog

If a nurse has passed the NCLEX and the only issue holding up the issuance of the license is the lack of a Social Security Number, the USCIS should still approve the visa petition. This process would be consistent with the USCIS’ long-standing procedure on petitions solely lacking Social Security Numbers.

For instance, a November 20, 2001 INS (predecessor to the USCIS) Memo directs USCIS officers to approve petitions when the sole missing item is the social security number. Similarly a May 20, 2009 USCIS Memo reiterates this position.

The President’s remarks ended some speculation this week that the Senate would attempt to move on immigration. Earlier, a group of Senators released a new summary Comprehensive Immigration Reform bill — the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) bill. REPAIR was co-authored by many leading Democrats: Senators Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Dianne Feinstein (D-CA), and Robert Menendez (D-NJ). It provides a path forward for both political parties to come together and enact a lasting federal fix to the problem this year.

The actual bill language has yet to be released, although summaries have been published. At this point, it is unknown whether there is a specific liberalizing provision for Schedule A occupations – Registered Nurse and Physical Therapists. Past versions of CIR have included such a provision.

To some degree, it doesn’t matter. The President indicated that immigration is a secondary domestic priority and it is unlikely that immigration reform will be taken up in 2010.

This posting will focus on some preliminary thoughts and issues that are common in most visa Petitions and Applications. The subsequent postings will highlight the specific occupations.

In all instances, there must be an employer who is the Petitioner of the visa. Generally the Beneficiary must hold the appropriate state license, although a few exceptions will be noted.

For those who are overseas, any healthcare immigration case generally starts with an immigration Petition filing in the United States. Upon approval of the Petition, the case is forwarded to the appropriate US Consulate or Embassy where the visa is issued to the beneficiary.

Upon visa issuance, the Beneficiary can enter the US. Family members generally can attend the interview and are issued derivative visas. Some derivative visas allow the derivatives work authorization and others do not.

There are two broad visa categories: nonimmigrant and immigrant visas. Nonimmigrant visas (also called NIVs or temporary visas) typically are for shorter periods of time. NIVs also tie an employer and employee. In other words if the Beneficiary wants to move to a new employer, a new NIV must be filed.

Once issued, Immigrant visas (also called IVs, green cards, or permanent residency) typically remain valid for 10 years. Immigrant visa holders also become eligible for US Citizenship, ordinarily after 5 years. IVs also may sponsor certain family members for US immigration, although the retrogression for some family categories is lengthy.

The Neufeld Memo’s main flaw is that it misreads the underlying regulation. 8 CFR 214.2(h)(4)(ii) holds that a U.S. employer is indicated by five characteristics: hire, pay, fire, supervise, or otherwise control. This regulation is controlling. Incorrectly, the Neufeld Memo implies that “right of control” is a superior characteristic encompassing the other characteristics.

In order to attempt to get its hands around the growing confusion, the USCIS held a Listening Session on March 26, 2010. MU’s attended and participated at the Session.

The USCIS’ recently released Executive Summary from that session recognizes that “if” right of control is required, then the Neufeld Memo contradicts the existing regulation. The Executive Summary goes further and agrees that “if” right of control is only one of the five elements, then an amendment is needed to the Memo.

These are not small issues. Staffing companies use the H-1B visa to supply staff to third-party worksites, mainly where well-documented US supply is short. At this point, it simply makes sense for the USCIS to suspend or withdraw the Neufeld Memorandum. At best, the Memo makes a confusing area of law incomprehensible. At worst, it takes a simple regulation and misapplies it.

While Musillo Unkenholt has several problems with the proposed revised Form I-129, MU elected to highlight the most significant change in our comments to the USCIS. Namely, the apparent new requirement that an amended H-1B Petition must be filed whenever a H-1B worker changes his geographical location. This new requirement quietly was snuck into the new Form’s instructions.

This has never been USCIS policy. The USCIS’ current policy remains unchanged since the early 1990s. 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.

We invite you to read the MU letter. AILA has also published a lengthy letter that was also submitted to the USCIS as part of the comment period. AILA’s letter raises a number of excellent points.

USCIS recently has begun to engage the public in advance of changes. MU applauds this effort and has actively participated in several of the USCIS’ outreach sessions. This effort to slip a massive change past the immigration bar belies that effort.