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MU will or has raised several concerns with the application of the Neufeld Memo in the past. These include:

1. The issuance of the Neufeld Memorandum is a substantive change to existing law. Such changes to law by Memorandum are illegal under the Administrative Procedures Act. Under the APA, regulatory agencies like USCIS must first publish proposed rules in the Federal Register. Then, the agency must allow the public to comment on the changes. The USCIS must then consider and respond to the public comment.

2. The entire reasoning of the Neufeld Memorandum is unsound. In the Neufeld Memorandum, the USCIS found that existing law did not define “employer-employee” relationship. AILA contends, correctly MU thinks, that existing law does define “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Therefore the USCIS’ use of Supreme Court cases and common-law is improper since the definition is already right there in the definition.

3. To the extent that the USCIS applies the definition, it limits its focus to one of these five characteristics — control – and fails to explore the other four characteristics – hire, pay, fire, and supervise.

4. Even if the USCIS feels that it needs help in defining “employer-employee,” the USCIS completely misapplies the relevant Supreme Court decisions. Cases such as Clackamas speak to the idea of balancing all characteristics and not limiting the analysis to the control characteristic.

5. When Congress last amended the relevant statutes in the law IMMACT90. It expressly sought to expand the definition of employer, not restrict it. USCIS is not legally allowed to violate Congress’ express intent.

For readers of this Blog, CIR is only critical insofar as CIR includes liberalized visa quotas and procedures for healthcare occupations that have long been in short American supply – nurses, physical therapists, occupational therapists, etc. and are expected to be in short supply in the upcoming decade.

Legislators have been hesitant to pass piecemeal legislation at targeted immigration issues. The idea has been to force all immigration issues into one comprehensive bill. This strategy was unsuccessful in 2006-7.

Because of the failure of the 2006-7 effort, pundits are skeptical that any CIR bill will be finished before this November’s mid-term election. The problem with that pessimism is that it fails to consider that all legislation is a long haul. For instance, the Healthcare bill has been declared dead more times than a horror movie villain, and yet it lives!

It helps nobody to be needlessly optimistic or pessimistic on CIR. The reality is that with hard work CIR can be passed and with targeted advocacy healthcare occupations can be part of the discussion. Have you called your Congressman?

– You can read it on http://www.musillo.com/

EB1 – all current
EB2 – all current, except China (22 AUG 05) and India (1 FEB 05)
EB3 – all 01 FEB 03, except India (08 SEP 01) and Mexico (01 JUL 02)

This is modest progress from last month’s Visa Bulletin for All Other EB3 Applications. All Other EB3 has increased 3 months since March 2010 and 6 months since February 2010, when it was 22 SEP 2002. India EB3 has also improved from 22 JUN 2001 since February’s Visa Bulletin.

The purpose of the late publication of the regulations is “to ensure worker protections are in place for those nurses currently employed in H-1C status, whose stays may extend beyond December 20, 2009.” Some H-1C nurses are still authorized to work in the US, although that number is shrinking with each day; extensions are no longer approvable with the H-1C program’s expiration.

The Background Information to the regulation includes a lengthy history of the H-1C program. Originally, the H-1C program was conceived as nonimmigrant solution to the nursing shortage. The usual nonimmigrant professional program, the H-1B, has only limited application for registered nurses. But the limits on the H-1C program rendered it inert for all but fourteen hospitals in the US.

There does not seem to be a groundswell of support for a reenactment of the H-1C program, since the nursing shortages have lessened with the onset of the recession. Nevertheless, the H-1C program has been extended several times in the past. It remains to be seen whether the H-1C will rematerialize when the inevitable nursing staffing shortages reemerge.

Historically, documentation of the ability to hire, pay and fire an Employee was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” which reflects the current position of the USCIS on this issue. In this Memorandum, the USCIS takes the position that Petitioner (Employer) control over the Beneficiary (Employee) is paramount. The Memorandum outlines a number of factors to be considered including:

· the method and manner of supervision
· whether the Petitioner provides any necessary tools or instrumentalities for the Beneficiary to perform the duties of employment
· whether the Petitioner has the ability to hire, pay and fire the Beneficiary
· whether the Petitioner evaluates the work-product of the Beneficiary
· whether the Petitioner provides employee benefits
· whether the Beneficiary utilizes any proprietary information of the Petitioner
· whether the Beneficiary produces an end-product directly linked to the Petitioner’s business
· whether the Petitioner has the ability to control the manner, means, and the work product of the Beneficiary

Currently there is a annual cap totaling $1,860 per patient for Therapy services. In years past, the exception to the therapy cap for patients in dire need of therapy care was routinely extended. The exception was supposed to be included in last week’s Jobs bill, but it was shelved due to political machinations.

This is having a major negative impact on many healthcare providers and the patients that they treat. The therapy industry was devastated the last time the exception lapsed for a significant period of time in the late 1990s.

If you would like to take positive action to extend the Medicare part B therapy cap exceptions, please see the AHCA CapWiz page.

On-line reporting will not be available to applicants who were issued a report before February 2, 2010. Applicants who are issued a report between February 2 and March 1 will receive a paper copy of the report in the mail and also be able to view and download their report online.