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BLOOMBERG NEWS ON THE NEW USCIS NURSE H-1B MEMO

Bloomberg News BNAhas published a detailed analysis of several recent H-1B visa developments, includingthe newUSCIS Nurse H-1B Memorandum.  Severalattorneys, including MU Law’s ChrisMusillo, were interviewed for the article. Bloomberg has allowed MU Law to publish a copy of the article.
The article discussesincreasing H-1B denial rates in spite of the fact that no new H-1B regulationshave been published by USCIS in years.  Onereason for the increasing denial rates have been stricter USCIS interpretationsof “specialty occupation,” based on faulty reliance of the Department of Labor’sOccupational Outlook Handbook
Chris’ comments highlightthe USCIS over-reliance on the OccupationalOutlook Handbook when adjudicating H-1Bs for Registered Nurses.  Chris points out that while most nursingpositions do not require Bachelor Degrees, some do.  Since some require a Bachelor’s degree theUSCIS ought to look at an employer’s actual positional requirement instead oflimiting review to the industry standards listed in the Occupational Outlook Handbook.
The Bloomberg articlealso discusses some recent court decisions and USCIS interpretations in light ofthese decisions.  

NOTE – the Bloomberg article is reproduced with permission from Daily Labor Report, Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)  <http://www.bna.com>

Bloomberg H-1B Article.pdf

VISA PROJECTIONS FOR THE REST OF 2014

AILA has recentlydialoged with the Department of State’s Charlie Oppenheim, who is the DOS’chief for producing the Visa Bulletin.  MULaw has spoken with Mr. Oppenheim several times in the past and have alwaysfound that his projections are well thought out and very accurate.

Here are hisprojections based on his recent conversation with AILA:
  • The Philippine EB-3 date should continue to beconsistent with the Worldwide (Rest of World) date for at least the next fewmonths.  Usage of Philippine EB-1 andEB-2 numbers has decreased, leaving more numbers for Philippine EB-3. 
  • India EB-2 numbers should continue to befavorable, although large jumps forward should not be expected.  The current priority date for Indian EB-2 isMay 2009.  Adjustment of Statusapplicants should be prepared to get RFEs for medical exams if their prioritydate is at or near that date.  Adjustmentof Status applicants should be prepared to get RFEs for medical exams if theirpriority date is at or near that date.  

HOW TO GET PROOF OF SOCIAL SECURITY NUMBER

One constantchallenge for immigration foreign nationals is obtaining a Social Security Numberonce they have entered the US.  Traditionally,the Social Security Administration (SSA) made Social Security Number cards availablevia in-person visits immediately or almost immediately after one entered theUS.  Effective August 1, 2014, however, the SSA will no longer provide SocialSecurity Number card printouts.  It will now take up to two weeks before the SSNs are issued.
The SSA, says thatthe an applicant can get an instant letter online with a personal my Social Security account, or theymay continue to call the SSA toll-free to request a letter by mail.  The phone number is: 1-800-772-1213 (TTY1-800-325-0778).

SEPTEMBER 2014 VISA BULLETIN: GREAT NEWS FOR THE PHILIPPINES

The Department of State has just released the September 2014 Visa Bulletin. This is the twelfth and final Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013. The October 2014 Visa Bulletin will begin the 2015 Fiscal Year.

The Philippines EB-3 jumped again. It is now at April 2011, which is a four year jump in the last four months.

India EB-2 also moved forward steadily. It progressed to May 2009.


The Chinese EB-3 number remained at November 2008. 



The All Other EB-3 held steady as well. It remains at April 2011. As we predicted last month, it did not progress.

Employment- Based
All Other
CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 08OCT09 01MAY09 C C
3rd 01APR11 01NOV08 08NOV03 01APR11 01APR11
Other Workers 01APR11 22JUL05 08NOV03 01APR11 01APR11

TALK WITH THE NEW USCIS CHIEF

New USCIS ChiefLeon Rodriguez was nominated for the job shortly after Alejandro Mayorkas acceptedthe positon of Deputy Secretary of the USCIS. Director Rodriguez was sworn into the role on July9, 2014.  Mr. Mayorkas’ tenure asDirector was marked by greater engagement with the public than hispredecessors.  Mr. Mayorkas regularlyattended AILA functions and routinely held “town hall” style meetings with thepublic. 

Mr. Rodriguez seemspoised to continue in this manner.  USCISwill be holding a stakeholder teleconference on Thursday, Aug. 14, from 1:30 to2:30 p.m. ET, with USCIS Director Léon Rodríguez.

During theteleconference, Director Rodríguez will introduce himself to the USCISstakeholder community and answer questions.  Teleconference registration details are expectedshortly. 

WHY RECRUIT AN INTERNATIONAL HEALTHCARE PROFESSIONAL?

According to a 2012“UnitedStates Registered Nurse Workforce Report Card and Shortage Forecast,”published in the American Journal of Medical Quality, 

“With an aging U.S.population, health care demand is growing at an unprecedented pace . . . Thenumber of states receiving a grade of “D” or “F” for their RN shortage ratiowill increase from 5 in 2009 to 30 by 2030, for a total national deficit of918,232 RN jobs. There will be significant RN workforce shortages throughoutthe country in 2030; thewestern region will have the largest shortage ratio of 389 RN jobs per100,000.”

The situation is nobetter in other allied healthcare occupations. According to the Department of Labor’s Occupational Outlook Handbook by2022, employment of Physical Therapists is expected to skyrocket by 36percent.  The same is true ofOccupational Therapists (29 percent), Pharmacists (14 percent), and SpeechLanguage Pathologists (19 percent). 
Contrary to somepublic perception, International Healthcare Professionals are notundereducated.  Prior to issuance of avisa, the International Healthcare Professional’s education, training, pastlicenses, and experience must be verified and proved that it is authentic andcomparable to an American healthcare worker of the same type.  InternationalHealthcare Professionals must pass English fluency exams prior to visaissuance.

InternationalHealthcare Professionals are also not underpaid.  Because of strict USCIS and DOL wage requirements,International Healthcare Professionals must be paid the greater of prevailingand actual wages.  InternationalHealthcare Professionals cannot have their hours reduced.  The employer must pay the guaranteed minimumhours unless the International Healthcare Professional is unavailable for workbecause of non-work related factors, such as the worker’s own voluntary requestfor time off, or in other circumstances where the worker is unable to work.

The PERM laborcertification process guarantees that there are no US workers ready, willing,and able of performing the position before any International HealthcareProfessional is granted an immigrant visa.  Employers cannot makeInternational Healthcare Professionals sign onerous contracts, including those containpenalty clauses.
Recent studies arepointing to the high quality of care provided by International HealthcareProfessionals and the added value that they bring to the US healthcare industry.  Patricia Cortes, Assistant Professor,Markets, Public Policy and Law, Boston University, authored a 2012 study, RelativeQuality Of Foreign Nurses In The United States
She found that,

“foreign nurses, in particular Filipinos, tendto work in more demanding settings and maintain less desirable schedules – theyare more likely to work in hospitals, work full-time, and do shift work, ascompared to their native counterparts.

Natives are more likely to work part-timeand choose jobs with standard schedules – for example, they tend to work in physicians’offices and schools, etc. In terms of educational background, the majority offoreign nurses have at least a bachelor’s degree, whereas a larger fraction ofnatives have an associate degree. A more educated nurse workforce (as measuredby the share of nurses in a hospital holding a bachelor’s degree) has beenassociated with better patient outcomes and higher nurse productivity.”

MU LAW’S OFFICE CLOSING EARLY ON JULY 30

Musillo UnkenholtLLC turned five years old on July 1, 2014! It would have been impossible to have our five years of success withoutthe hard-effort and talent of our Legal team. In celebration of our fifth birthday and in recognition of everyone’shard work, we will closing the office at 12 noon (ET) on Wednesday July30.  We are having a group outing at theCincinnati Reds baseball game.  If youcontact us during the afternoon of July 30, rest assured that we will promptlyreturn your call or email on Thursday.

ANALYSIS OF THE NEW USCIS MEMO ON H-1B FOR RNs

USCIS has just publishedand released an updated H-1B Memorandum which purports to provide guidance toUSCIS officers in their adjudication of H-1B petitions for RegisteredNurses.  This Memorandum updates thelong-standing 2002Johnny Williams USCIS Memorandum on the same subject.  The new Memorandum does not break new ground.  It is not expected that the Memorandum willresult in a significant increase in approved H-1B petitions, although its Backgroundsection helpfully reminds USCIS officers that “there are some situations,however, where the petitioner may be able to show that a nursing positionqualifies as a specialty occupation”.
USCIS officers presentlydeny nearly all H-1B petitions for Registered Nurses, regardless of thespecific facts of the petition.  The fundamentalproblem for RNs seeking H-1B status is that few US Registered Nurse positionsin the US require a Bachelor’s degree in Nursing for entry into theposition.  In order to have an H-1Bapproved it is not enough that the applicant holds a Bachelors’ degree; theposition itself must require a Bachelor’s degree.  The Memorandum makes this clear: “Registerednurses generally do not qualify for H-1B classification” (Page 2).
Even nurses whowork in units where 100% of the nurse workforce holds Bachelors of Science in Nursing(BSN) have seen H-1B denials.  Thesedenial opinions dismiss the employer’s facts, and simply cite to the Occupational Outlook Handbook, whichgenerally says that nursing positions do not require Bachelor’s degrees.
As the Williams Memorandumexplained, the new Memorandum confirms, there are exceptions to this generalrule.  For instance, the new Memorandum favorablyrecognizes that hospitals with magnet status, “indicates that the nursingworkforce within an institution has attained a number of high standardsrelating to quality and standards of nursing practice” (Page 3).  The Memorandum then buries in footnote 9 a veryimportant fact: “For example, as of January 1, 2013, 100% of nurse managers ofindividual units/wards/clinics must have at least a baccalaureate degree innursing upon submission of the Magnet application.”  This Memorandum would have been improved ifthe author had plainly stated that Nurse Manager positions at Magnet hospitals qualifyfor H-1B visas.  Nonetheless, this acknowledgement should be helpful in future H-1B petitions for Magnet HospitalNurse Managers.
Beyond this sectionon Magnet hospitals the new Memorandum offers little guidance for USCISofficers.  In several places the Memorandumtells officers to analyze cases on the facts of the petition and on a case bycase basis, which is apparent.
The new Memorandummirrors the Williams Memorandum in that it reminds officers that Advance PracticeNursing position are generally specialty occupations and approvable for H-1Bvisas.  It also helpfully recognizes thatsome specialties, such as critical care and peri-operative (operating room) mayqualify for the H-1B.
While USCIS HQmissed an opportunity to be clearer about which RN positions were approvablefor H-1B visas, the Memorandum shows that the USCIS is aware of the issue.

UPDATE: The USCIS appears to have broken the link to its Memo.  The Memo can be found on our DocStoc site.

FCCPT VERIFICATION OF INDIAN EDUCATION

All foreign-educatedPhysical Therapists must be issueda Healthcare Worker Certificate prior to receiving a temporary (e.g. H-1Bor TN) or permanent visa, as per 8 CFR 212.15(c):.  Two originations are permitted to issue theseHWC’s.  CGFNSissues the Visa Screen, which is also issued to qualified Registered Nurses, OccupationalTherapists, and several other healthcare occupations.  FCCPTissues the FCCPT Type I Certificate.  TheFCCPT Type I is only issued to Physical Therapists. 
The HWC verifies thatthe foreign educated Physical Therapist has (i) qualifying education, training,licensing, and experience; (ii) passed a qualifying English fluency exam; and(iii) passed the actual licensing exam (NPTE exam). 
The FCCPT recentlypublished an update about their verification of Indian distance education.  At issue is whether the educationalexperience is post-Secondary education and is not continuing education.  Several criteria are now considered by FCCPT.
                     Verification that the study center does notviolate the jurisdiction territory as outlined by the University GrantsCommission (UGC).
                     Evidence that the study center is notfranchised. This means that it cannot be affiliated to more than oneuniversity.
                     Verification that the University is in charge ofadmissions to the distance education program.  Admissions cannot be done by study centers asper UGC regulation.

                     That the program is authorized to be offeredthrough distance education by the Distance Education Council (DEC). Even thoughthe DEC has been disbanded by the UGC, the regulations stay in effect until theUGC publishes new standards.

H-1B FOR NURSE EDUCATORS

To qualify for an H-1B, theposition must require and the employee must hold a bachelor’s degree orgreater.  As a result, most nursingpositions do not qualify for H-1B as a BSN is not typically required for afloor nurse position.  Nurses who are eligiblefor an H-1B include: a nurse educators, nurse managers, or specialty nurseswhere the position requires a higher level of education.
Earlier in the year, MU Lawreceived a denial in a case for a Nurse Educator position.  The USCIS denied the petition, holding theposition did not require a bachelor’s degree or greater – a requirement forH-1B status. 
After the denial, we appealed thecase to the Administrative Appeals Office (AAO), which is the body that reviewsappealed USCIS Service Center decisions. We believed and argued that the evidence shows that the preferredcredential for teaching in the academic setting is the doctoral degree.  At a minimum, nurse educators at colleges anduniversities must hold a master’s degree in nursing and have additionaltraining in the science of teaching.
We have recently received word thatour appeal was successful. MU successfully argued that the position of NurseEducator requires a master’s or doctoral degree and so therefore not onlymeets, but exceeds, the H-1B requirements. The appeal was sustained and the H-1B is now approved.
A nursing shortage in United Statesis expected to continue in  the comingyears, as the US economy continues to recover and older nurses beginretiring.  This will only make the need for qualified nursing faculty morecritical and the H-1B a viable option for schools looking to hire nursing faculty.
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