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The American Health Care Association (AHCA) outlinedits core principles for immigration reform in a March 12, 2013 PressRelease. 

MU Law has just returned from Washington DC where we, along with a group of about ten stakeholders, met with close to twenty Senators to discuss how healthcare immigration might fit into the forthcoming Senate  Comprehensive Immigration Bill.  The discussions were largely productive with most Senator’s staffs in favor of the bill.  The consensus on The Hill is that the Senate’s version of CIR is in the final stages of drafting and should be released in early to mid-April.

The particulars of the Senate CIR bill are still under lock and key.  The most controversial pieces of the bill have not yet been finalized.  One of the most difficult discussion is on a Guest Worker program.  Most Senators believe that for a Comprehensive Immigration bill to be successful it must contain a way for US employers to sponsor foreign workers who do not fit into the H-1B category.  The debate centers on where to draw the line.  Depending on where the line is drawn a Guest Worker program could qualify a range of healthcare workers for Guest Worker sponsorship.

If the Senate can reach an agreement and a bill is released, the focus will turn to the House of Representatives.  The House has its own group working on a bill.  The conventional wisdom seems to be that the House will take the Senate’s bill and then work on a similar but not identical bill.  If the House can pass a similar CIR bill, then a Conference Committee will be formed.  

The Conference Committee will consist of members of both the Senate and House.  Their goal is to remedy inconsistencies between the two bills.  If that Conference Committee can reach an agreement, the bill will pass both chambers of Congress and presented to President Obama.  The President is expected to sign into law any reasonable bill that is presented to him.

Any H-1B cap–subject petition that is filed between April 1 and April 5 istreated as a first-day filing.  In accord with this information, MU Lawstrongly urges all clients to be prepared to file their H-1B cap-subjectpetitions ASAP. 

MU Law clients are reminded that all H-1B petitions must include a certifiedDepartment of Labor – Labor Condition Application (LCA).  The LCA takes 8days to be certified, and so any H-1B cap-subject petition that is notinitiated at our office by March 24, 2013 will not accepted in this year’s H-1Bcap.

If the USCIS is correct and more than the 65,000 H-1B cap-subject petitionsare reached on the first day, the USCIS will hold a lottery and return any H-1Bpetitions that are not lottery ‘winners’.  The USCIS will also refund theentire H-1B filing fee.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT programafter having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them inorder 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

H-1B petitions that are not subject to the H-1B cap include:
* H-1B extension petitions
* H-1B transfer petitions
* Certain H-1B petitioners for University employers
* Certain H-1B petitions for Non-Profit Research organizations

A Texas IT services firm, Dibon Solutions, has just been indicted by federal authorities, who allege that Dibon unlawfully benched H-1B employees, reports Computerworld.   Six Dibon Solutions employees have been arrested.

Dibon’s business model, which is permissible for US workers, is impermissible for H-1B workers.  The model called for Dibon to place H-1B employees at third-party client worksites, as those third-party clients needed IT services.  When there was no client work, Dibon benched the employees and did not pay the H-1B workers the requisite H-1B wage, which is the alleged illegal act.   

The U.S. Department of Labor requires that H-1B employers pay H-1B workers their full H-1B wage, even if the H-1B worker is not working.  The H-1B employer has the option of terminating the H-1B worker, which dissolves he H-1B employer’s wage obligation.  However, if the H-1B employer wishes to re-hire the terminated H-1B employee, the H-1B employer must file a new H-1B petition with the USCIS and may be required to file a new Labor Condition Application with the DOL. 

Computerworld’s Patrick Thibodeau notes that the last headline-grabbing H-1B visa fraud case involved Vision Systems Group in 2011.  The Vision Systems Group case alleged $7.1 million in violations, but the USCIS quietly settled for $236,250.  It remains to be seen if the Dibon Solutions case will mirror Vison Systems Group or result in more serious penalties.  The fact that six employees have been arrested certainly means that the US believes that these charges are serious.

MU Lawyers Chris Musillo and Cindy Unkenholt will befeatured presenters at the 2013 NPA Global Conference in Las Vegas, NV.  NPA, The Worldwide Recruiting Network is atrade association that connects independent global recruiting firms.  NPA is the oldest recruiting network of itskind, with an international membership of recruiting firms located throughoutEurope, Asia, Australia, Africa and the Americas.  The MU Law presentation focuses onInternational Healthcare Visa Options.  Ifyou are at the Conference please stop by and say hello.

• India EB2 will see very little movement in the foreseeable future.  Many immigrant visa applicants with old India EB3s are recapturing these dates in subsequent EB2 applications, thereby holding back the progression of India EB2.  Current numbers indicate that there are approximately 42,000 India EB2 cases in line with priority dates prior to May 2010.  These numbers cannot account for future upgraded India EB3s.
• The USCIS and DOS have pre-adjudicated 44,000 India EB-3 Applications with priority dates before August 2007.  Therefore it will be several years before India EB-3 progresses beyond that date.
• There are 12,000 India EB3 cases with priority dates before January 2004, which means that India EB3 will not improve into 2004 for at least one or two years.
• Worldwide EB-3 has 42,000 pre-adjudicated cases with priority dates before March 2007.  Still, the Worldwide EB-3 date is May 2007.  Mr. Oppenheim did not say it, but it reasonable follows that many of these 42,000 Worldwide EB-3s likely have been abandoned.

The US allows65,000 new cap-subject H-1Bs in any fiscal year.  Added to that is another 20,000 H-1Bs forthose who have graduated from US Master’s degree programs.  There is no limit on cap-exempt H-1Bemployers.  Cap-exempt employers are nonprofitentities (or their affiliates) who are associated, owned or attached to auniversity.  Some research facilities arealso exempt from the H-1B cap. 

Computerworldreports that 134,780 cap-subject H-1Bs were approved in fiscal year 2013 (thefiling period for cap-subject FY2013 H-1Bs was April 1, 2012 – June 12,2012).  This is the greatest number offilings since FY2007.  Computerworldnotes that all of the top H-1B users are all technology companies.  There are not any healthcare companiesanywhere near the top of the list.  WillCongress carve out a visa path for these badly needed healthcare workers?