ALTERNATIVES TO IMMIGRATION REFORM

The USCIS has been discussing some options to provide positive immigration relief if legislation on comprehensive immigration reform does not get passed. In an internal memo to the Director of USCIS, the offices of Chief Counsel and Policy and Strategy lay out some suggestions for USCIS to take administratively within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

1. Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can't be done unless the priority date is current.

2. Expand the 'dual intent" doctrine to non-immigrants such as TN's and F-1. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a "dual intent" status.

3. Create a grace period ranging from 45 to 90 days for some non-immigrant categories. This would be especially helpful for H-1b applicants to do an H-1b transfer if they lose a job and soon find a new job, whereas current law holds the person to be "out of status" and subjects the H-1b applicant to returning to his/her home country to get a new visa stamped.

4. Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.

5. Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.

6. Utilize defferred inspection to applicants whose removal is not in the public interest. This allows a "stay"in the U.S. to buy time for the applicant to have some form of legislative relief in the future.

7. Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy.

8. Extend work authorization on EAD when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

SCIS believes these options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet on if or when USCIS will implement these suggestions.

FOREIGN NURSES SEEKING EMPLOYMENT IN CALIFORNIA

The California Board of Nursing is providing limited relief for foreign nurses who are affected by the recent change of the licensure requirement in California.

By way of background, as of April 26, 2010 the California Board of Registered Nursing (BRN) made two changes that impacts foreign nurses. The changes affect applicants who are filing initial applications for licensure and applicants who have applications pending.

1) Initial Application: the BRN will no longer accept an application for licensure by examination or endorsement unless the applicant has a U.S. Social Security Number. Previously the BRN would accept the application and issue an ATT (authorization to test for the NCLEX) and then hold the file until the applicant obtained a social security number. Now, the board will not accept an initial application WITHOUT a social security number.
2) Pending Application: the BRN will no longer provide extensions of file abandonment. Previously the BRN allowed a three-year period for the applicant to submit the social security number but the applicant could also request an extension of that time by providing proof that visa delays, etc. was delaying the issuance of the social security number. Now the BRN will not allow any extensions.

However, for those applicants affected by the second situation (file currently in process at the BRN and subject to abandonment) the BRN has announced a few options. First, once the SSN is obtained, the applicant can re-apply to the BRN by simply submitting a new Application Fee Schedule, transcript and fingerprint card but will not need to re-test. Second, the applicant may request the BRN to provide the NCLEX test results to another U.S. state (such as one that does not require a social security number). This latter option requires a $10 processing fee.

Also, if an applicant needs the BRN to provide the NCLEX-RN test scores to ICHP (CGFNS) for the Visascreen, the BRN will do so for a $60 filing fee.

H-1B CAP COUNT

The USCIS has not yet received half of the H-1b petitions it is allowed to accept in a fiscal year. The latest report from USCIS released today shows that USCIS has received approximately 24,800 H-1b petitions under the normal quota of 60,000 and approximately 10,600 under the U.S. Master's degree quota of 20,000.

The first month of filings (April 2010) the USCIS received approximately 16,500 H-1b petitions under the normal quota. However, since that time, they have been averaging between 600 and 700 H-1b petitions per week.

BIG JUMP FOR EB3 PHILIPPINES

The Department of State's recently released Visa Bulletin for the month of August reveals a 10 month progress in visa availability for EB3 category from the Philippines. The priority dates moved from August 13, 2003 to June 1, 2004. The same movement applies to the third preference category for the "worldwide" category which includes all countries other than China, Dominican Republic, India, Mexico and the Philippines.

Other categories moved forward also: a 6 month move for EB2 India, 4 month move for EB2 China, 2 month move for EB3 India and 1 month move for EB3 China. The exact dates are as follows:

FIRST PREFERENCE:
Current

SECOND PREFERENCE:
China (March 1, 2006)
India (March 1, 2006)
all others current

THIRD PREFERENCE:
China (Sept. 22, 2003)
Dominican (June 1, 2004)
India (Jan. 1, 2002)
Philippines (June 1, 2004)
Worldwide (June 1, 2004)

These priority dates are consistent with the estimates provided by the Department of State earlier this year and consistent with the projections by HLG from last fall.

FSBPT Suspends NPTE Examination for All Graduates of Certain Overseas Programs

FSBT has announced that effective 11:59PM, Sunday, July 11, 2010, new registrations for both the PT and PTA versions of the NPTE (physical therapist licensing examination) have been suspended for all graduates of physical therapy programs located in Egypt, India, Pakistan, and the Philippines.

FSBT has suspended registration based upon what it claims is "compelling evidence" of systematic and methodical cheating on the examination by candidates from these countries.

FSBPT is developing a separate, secure exam for those graduates (to be called the NPTE-YRLY), which should be available in the fall of 2011. FSBT intends to offer the NPTE-YRLY once per year.

Click here for a link to the notification on the FSBT website, which contains a detailed explanation of the basis for the suspension of registrations, as well as an explanation of the manner in which candidates for the test will be treated, based upon their particular stage in the registration process.

Candidates who have already registered, paid, and received an ATT (Authorization to Test) Letter from their state licensing board to take the NPTE are being given the option to withdraw their registrations for a full refund and wait to take the NPTE-YRLY, or to proceed with taking the test, but then have their scores held and evaluated for statistical analysis and possible invalidation if any anomalies are detected.

FSBT also announced scores of some prior test takers will be invalidated based upon evidence already collected.

FSBT has sent letters to candidates with a currently pending registration, indicating their options and providing a deadline of July 30, 2010 to respond. Applications for candidates who have registered but have not yet paid or received an ATT are being closed.

The Hammond Law Group strongly recommends consultation with your sponsoring agency, employer, and counsel prior to making any decision regarding such a letter. We will also continue to update this story as more information becomes available.

July Visa Bulletin Predicts Future Movement in Priority Dates

With the recent release of the July Bulletin, the Department of State released some "best case scenarios" of where dates will be by the end of Fiscal Year 2010- i.e. October 2010. Below are these predictions:

Employment First: Current

Employment Second:

China and India: March or April 2006

Employment Third:

Worldwide: June through September 2004
China: October through December 2003
India: February 2002
Mexico: Unavailable
Philippines: June through September 2004

If true, these predictions represent a significant movement forward for many of the categories. Keep it posted to our blog for further updates.

Good News for Filipino EB-3 RN’s

The July Visa Bulletin was released today, and for those of you hoping for a big jump forward with the EB-3 numbers for the Philippines, you will be disappointed again as the numbers only moved to Aug 15, 2003.

However, there is good news buried in the bulletin. The Department of State is projecting that the dates for EB-3 cases from the Philippines will advance to mid-2004 by September. This projection, coupled with the I-485 inventory report released earlier, gives hope to further movement of EB-3 Filipino priority dates in 2010.

It also suggests that the projection HLG made in December of 2009, that all of the 2004 priority dates and a portion of the 2005 priority dates would become current in calendar year 2010, may actually be accurate and was not just the wishful thinking of a mathematically challenged immigration lawyer.

Mike Hammond

USCIS Announces Changes to E-Verify

USCIS has announced significant changes are coming to E-Verify on June 13 that will enhance its usability, security, accuracy and efficiency. E-Verify is an Internet-based system that allows companies to verify the eligibility of their employees to work in the United States. USCIS reports the newly redesigned E-Verify features a clean and modern design, easy and intuitive navigation, and clear and simple language.

Employers will be required to complete a tutorial prior to using the redesigned system for the first time. For more information about the redesign and required tutorial, click here.

USCIS has announced webinars at two different times on June 16th to help employers understand the redesigned system. Click here to register for one of the webinars.

First Complaint Filed Against Neufeld Memo

The first, of possibly many, complaints have been filed today in the US District Court for the District of Columbia challenging the USCIS' application of the January 8, 2010 Neufeld memorandum's definition of employer-employee relationships when adjudicating H-1B petitions filed by staffing companies. In the application for preliminary injunction and complaint, the Plaintiffs, Broadgate Inc., Logic Planet, Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association, allege that the "economic impact associated with the Neufeld Memorandum is substantial, immediate, and irreparable." The Plaintiffs are requesting the Court issue a preliminary injunction enjoining the USCIS from applying the Neufeld memo's definition of employer-employee relationship when adjudicateing H-1B visa applications from contractors that place professionals at third-party work sites. Further, the Plaintiffs are requesting the court enter a permanent injunction vacating the Neufeld memo as invalid. District Court Judge Gladys Kessler will be hearing the case. HLG will keep you posted with further updates on this case.

H-1B Cap Count as of May 28, 2010

The latest H-1B cap count released (May 28, 2010) has approximately 20,800 H-1B cap-subject petition received by the USCIS. Additionally, USCIS has received 8,700 H-1B petitions for aliens with advanced degrees. More information about the cap count can be found here at the USCIS Cap Count page:

Immigration Voice Announces Advocacy Event June 7,8

Immigration Voice, a grassroots immigration reform organization, has announced a two day advocacy event in Washington DC on June 7th and June 8th. Immigration Voice has planned over 300 Congressional meetings on Capitol Hill to impress upon the nation’s lawmakers the urgent need for Comprehensive Immigration Reform.

The purpose of this event is to highlight the plight of approximately one million highly-skilled professionals and their families who are unable to obtain permanent residence due to our broken immigration system.

Immigration Voice has also organized a Congressional Reception on behalf of highly -skilled professionals, which will take place at the U.S. Capitol Visitors Center, Room HVC-200, at 5:30pm-7:30pm on June 8th.

Additional details regarding this event can be found HERE.

Hammond Law Group encourages all foreign nationals and US citizens to become involved in advocacy for the reform of the current immigration system.

CBP, TSA Offer Summer Travel Tips

The CBP and the TSA have just released a series of travel tips in conjunction with the beginning of summer which are worth taking the time to review if you have any plans to travel in coming months. Some of the tips include:

*U.S. citizens traveling abroad must have approved travel documents when returning home.

*The Western Hemisphere Travel Initiative requires U.S. and Canadian citizens, age 16 and older to present a valid, acceptable travel document that denotes both identity and citizenship when entering the U.S. by land or sea. U.S. and Canadian citizens under age 16 may present a birth certificate or alternative proof of citizenship when entering by land or sea.

*A radio frequency identification (RFID)-enabled travel document such as a U.S. Passport Card, Enhanced Driver’s License/Enhanced Identification Card or Trusted Traveler Program card expedites entry and makes crossing the border more efficient.

*All nationals or citizens of VWP countries are now required to have an approved Electronic System for Travel Authorization prior to boarding a carrier to travel by air or sea to the U.S. under the VWP. CBP continues to facilitate the entry process for Visa Waiver Program travelers into the U.S. by implementing the Electronic System for Travel Authorization requirement on January 12, 2009.

The full list of tips can be found here. The Hammond Law Group always recommends clients consult with counsel before all travel outside the United States.

H-1B Cap Count as of May 14, 2010

The latest H-1B cap count released (May 14, 2010) has approximately 19,000 H-1B cap-subject petition received by the USCIS. Additionally, USCIS has received 8,100 H-1B petitions for aliens with advanced degrees. More information about the cap count can be found here at the USCIS Cap Count page.

H-1B Cap Count as of May 11, 2010

The latest H-1B cap count released has approximately 18,000 H-1B cap-subject petition received by the USCIS. Additionally, USCIS has received 7,600 H-1B petitions for aliens with advanced degrees.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

H-1B Cap Count as of 4/27/2010

USCIS reports H-1B petitions are extremely slow moving this year. As of the 4/27/2010 count, only 16,500 petitions have been filed against the regular H-1B cap and only 6,900 have been filed against the Master's cap count.

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

CONGRESSIONAL PLAN FOR IMMIGRATION

The conceptual proposal for immigration reform by Reid, Schumer and Menendez lays out the basic structure of what they want the CIR bill to contain. Here's the basic framework of the plan:

1. Border security - increased efforts to secure the border BEFORE action is taken to adjust the status of anyone already in the U.S. illegally. The security efforts include increased resources (people, money and equipment) to detect and prevent illegal entry.
2. Detection of unauthorized presence - equip all ports of entry with "US-VISIT" (United States Visitor and Immigrant Status Indicator Technology) to track when any person overstays their status in the U.S. Plus, criminals in federal, state and local prisons may be checked for lawful immigration status.
3. Increased penalties for violators - increase in penalties for foriegn nationals who violate immigration laws and 300% increase for employers who employ unauthorized individuals.
4. Biometric employment verification - the Social Security Administration to implement biometric social security cards within 18 months of enactment of the law. The cards will only serve as evidence of lawful work authorization.
5. Employment verification - replacing E-verify with BELIEVE (Biometric Enrollment, Locally-stored Information and Electronic Verification of Employment) which would be phased in within approximately 6 years after the law is enacted. Within 5 years the biometric social security card would be the only acceptable document for employment verification under the BELIEVE system.
6. High-skilled immigrants - a green card immediately available to foreign students with advanced degree from a U.S. institution in the STEM (Science, Technology, Engineering, Math) fields of study if they have a job offer from a U.S. employer in the field of study.
7. H-1b - increased provisions of H-1b including requiring internet postings to try to hire U.S. workers and limiting the number of H-1b's for an employer of 50 or more workers.
8. L-1 - limiting L-1b specialized knowledge to one year if the worker is placed at a third-party site. Also, adding wage rates and working conditions to the L-1 category.
9. H-2C - creating an H-2C category for non-season, non-agricultural workers (example: nurses) that would be valid for three years and renewable for a total of six years. It would also be dual intent and allow for portability to another employer after one year of employment. The annual cap would fluctuate based upon unemployment and economic factor, however, an employer could obtain a worker despite the cap if the employer engages in additional recruitment and pays a premium fee.
10. Visa backlog - recapture of unused visa numbers, increasing the per country limit from 7% to 10%, eliminating the family backlog within 8 years and classifying spouses and children of lawful permanent residents as "immediate relatives". Also, the creation of a Commission on Employment-based immigration that would allow for fluctuations in visa numbers.

House Republican Leader John Boehner says there's "not a chance" immigration reform will pass this year. He said, "We ought to have an immigration reform move through congress but you can't do immigration reform in the middle of a boiling, political pot here in Washington, D.C." He also said efforts by Senator Charles Schumer and others to move on an immigration bill is "nothing more than a cynical ploy to try to engage some segment of voters to show up in this November's elections."

NURSE LICENSE AND EXAM

The National Council of State Boards of Nursing has recently released statistics regarding nurse licensure and NCLEX. Although the statistics are a little dated, covering the year 2008 for examination results and the period of July 1, 2007 to June 30, 2008 for licensure statistics, here are a few noteworthy aspects:

1. The number of new licenses issued by examination in the one year period was 94,321. The state of California had the highest number, representing 12% of all nurses licensed by examination during that period.
2. A total of 51,834 candidates endorsed into a different state during the one year period.
3. The total number of active RN licenses reached 3,733,299, a steady increase each year since 2004. The number of active RN licenses has increased a little less than 700,000 during a 10-year timeframe of 1998 to 2008. (The U.S. population grew by more than 15 million just between 2001 and 2007 according to the U.S. Bureau of Labor Statistics).
4. The pass-rate for first-time NCLEX takers was 87% for U.S.-educated graduates and 45% for internationally-educated graduates.
5. A total of 20,072 internationally-educated graduates from the Philippines took the NCLEX for the first time, followed by 2,956 from India, 1,638 from South Korea, 639 from Cuba, 638 from Canada and 458 from China.

The NCSBN also reported that there are 155,900 active "advance practice" licenses within the U.S. jurisdiction. Nurse practictioners represent the highest specialty practice, followed very closely by certified registered nurse anesthetists at 33,404 licenses.

IMMIGRATION REFORM STIRRING ATTENTION

Immigration reform is becoming a higher priority for Congress - at least for the Democrats - because of the new Arizona law that gives police in Arizona the right to question any person who the police suspect may be in the U.S. illegally. The national attention from the Arizona law and the concern about the Democrats' prospects in the November election is causing the Obama administration and congressional Democrats to make immigration reform a priority this year - perhaps even introducing a bill before Memorial Day weekend.

The prospects of any federal immigration reform passing before the election are slim. Yet that may not be the sole purpose of immigration legislation. The Obama administration and Democrats are hopeful that the move on immigration will please their political base and help salvage some of their votes in the November election. But pushing it this year may also mean the death of CIR for several years to come. If immigration reform is voted on this year and then fails, it will make it more difficult to revisit the same issue next year, but may clear the way for other employment-based legislation to be offered by piecemeal next year.

Latest H-1B Count

The USCIS has released the latest H-1B numbers. As of April 15th, the USCIS had received 13,600 petitions out of the 65,000 numbers for the general H-1B cap, and 5,800 of the 20,000 master's cap exemption. This leaves more than 50,000 cap numbers still available.

GAO Conducting H-1B Study

The U.S. Government Accountability Office (GAO) is working on a report for Congress about the impact of the H-1B cap on the competitiveness of technology companies doing business in the United States. The study, which focuses on the impact of the H-1B cap on the competitiveness of U.S. technology companies, was mandated in the House Report of the Consolidated Security, Disaster Assistance and Continuing Appropriations Act of 2009.

The GAO will address issues such as:

1) The impact of the H-1B cap on the costs facing technology companies doing business in the U.S.
2) The impact of the H-1B cap on the ability of technology companies to recruit top talent,
2) The impact of the H-1B cap on technology companies' decision to outsource jobs overseas, and
3) The impact of the H-1B cap on incentives for technology companies in the U.S. to invest in research and development in the United States?

Companies may be randomly slected for participation in the study, however, the company name and details will remain confidential.

UPDATE ON NEUFELD MEMO

The January 8, 2010 "Neufeld memo" on the "employer-employee relationship" has created a lot of contention and two listening sessions by USCIS. At the latest listening session held March 26, 2010 in Washington D.C., the USCIS said they would look further into the legal reasoning of the memo and provide follow up by the middle of April.

The USCIS has yet to rescind the memorandum or provide corrections to it. So far, the USCIS has just issued an Executive Summary within the last few days. The Executive Summary is a simplied summary of the March 26 listening session on the impact of the memo to healthcare industries. The Summary merely points out some of the issues raised at the meeting but does not issue an opinion on those comments.

On a related note, the Administrative Appeals Office is currently taking 14 months to decide appeals on H-1b denials. With that long waiting period and the low number of H-1b petitions filed this year, it is usually more advantageous to re-file an H-1b petition rather than appeal, except when re-filing will generate the same wrong interpretation of the law.

PERMANENT RESIDENCE STATISTICS

The Department of Homeland Security has just released the Immigration Statistics Yearbook for 2009 which shows that a total of 1,130,818 people received permanent residence in 2009. The largest number was in the 20 to 34 year age group (141,060 people), followed by the 25 to 29 year old age group (136,807 people). 58% were married, 27% were single, and the remaining were widowed, divorced or separated.

Comparison by path to permanent residence:
535,554 were immediate relatives of U.S. citizens
211,859 were family-sponsored preference categories
144,034 were employment based categories
the remaining were diversity lottery, refugees and asylees, or other categories

Comparison by employment category:
40,924 were for 1st preference category
45,552 were for 2nd preference category
40,398 were for 3rd preference category
the remaining were for the 4th and 5th preference categories

Comparison by country for employment-based:
20,264 were for India
14,147 were for South Korea
11,295 were for China, People's Republic
8,660 were for Mexico
8,516 were for the Philippines

The number of people who became permanent residents in 2009 was the second highest in the last 18 years -- only 2006 had a higher number with 1,266,129 as compared to 1,130,818 in 2009. However, the number of those who obtained permanent residence through employment in 2009 was lower than many previous years. Only 44,336 obtained permanent residence in the 2nd preference category as compared to 68,832 in 2008 while the number of people who obtained permanent residence in the 3rd preference employment category was 1/2 or 1/3 of what it has been in most previous years in the past decade.

Comparison of 3rd preference employment to previous years:
33,525 in 2009
38,981 in 2008
62,642 in 2007
60,390 in 2006
109,713 in 2005 (due to legislation for Schedule A workers)
65,875 in 2004
26,962 in 2003

Interestingly, the Department of Homeland Security did not disclose how many people received permanent residence in the “Schedule A” category. The agency designated it as “D – Data withheld to limit disclosure”.

Healthcare bill adds to demand, but not supply of MDs

A recent Wall Street Journal article published on 4/12/2010 by Suzanne Sataline and Shirley Wang again revisits the physician shortage in the U.S. which is expected to grow considerably over the coming years. While many organizations have been warning of this shortage, the message may finally be gaining traction since the passage of the new federal healthcare bill.

"Experts warn there won't be enough doctors to treat the millions of people newly insured under the law. At current graduation and training rates, the nation could face a shortage of as many as 150,000 doctors in the next 15 years, according to the Association of American Medical Colleges."

While the healthcare bill does try to encourage people to enter the medical profession as physicians and American medical schools have increased enrollments, nothing has been done to date to address the limitations on residency positions.

One proposed solution to the physician shortage is to recruit increasing numbers of foreign physicians to practice medicine in the U.S. However, foreign trained physicians must complete a U.S. residency program before they are able to obtain a licence to practice medicine in any of the U.S. states. The article estimates that approximately 13% of current residency slots are filled by foreign physicians. With residency slots still at a premium, encouraging foreign physicians to immigrate to the U.S. may not be enough.

The article certainly suggests that much more must be done to prevent catastrophic shortages in the future and from the foreign physician's perspective, that fix must address both obstacles to immigration status and access to residency slots in the U.S.

The article can be read in its entirety through this link -- http://online.wsj.com/article/SB10001424052702304506904575180331528424238.html?KEYWORDS=medical+schools

VISA BULLETIN FOR MAY 2010

The Department of State has released the May Visa Bulletin, which represents very little overall movement from the current month. The second preference for India remained the same while second preference for China progressed one month from August 22, 2005 to September 22, 2005. The third preference for India moved less than a month: from September 8, 2001 to October 1, 2001. Third preference for Mexico became unavailable while the third preferenc for Philippines, China and other chargeability countries moved a month, from February 1, 2003 to April 22, 2003.

Historically, visa numbers move forward at a bigger pace in the summer, as the Department of State nears the end of the fiscal year on September 30, 2010 and sees that there are still visa numbers available for the fiscal year. Therefore, we should begin to see a bigger jump in the summer, particularly for the Philippines, which has fewer cases in the pipeline than India, according to reports from both USCIS and the NVC.

RELATIVELY FEW H-1B's

For the second year in a row, the USCIS has not reached the H-1b cap during the first week of filings. The USCIS has reported today that it has received only 13,500 H-1b petitions counted toward the 65,000 regular cap and approximately 5,600 petitions counted toward the 20,000 U.S. advanced degree cap for individuals with a U.S. Master's degree or higher. Due to the low number of H-1b filings, the USCIS will be able to utilize the premium processing system, specifically the 15-day premium processing clock will began on April 7 for all cases filed for premium processing during the initial April 1-7 window. For any cases filed under premium processing going forward, the 15-day clock will begin on the date the petition is received at USCIS.

The low number of H-1b filings shows that H-1b petitions are market driven. When the economy is booming, there are a lot of H-1b petitions filed because companies are hiring. However, when the economy is down, employers are able to find workers within the economy itself - U.S. workers, etc.

The low number of H-1b filings also shows that there are some better days ahead for foreign nationals who are filing for permanent residence. The low number of H-1b petitions has a ripple effect: less filings means fewer foreign nationals obtaining jobs in the U.S. which, in turn, means less permanent residence petitions filed. Recent statistics from the Department of Labor and USCIS bear this out. Both agencies have released reports in the last year confirming that the number of petitions for permanent residence is lower than in years past. In fact, the Department of Labor has increased their processing time significantly on PERM application. They are now working on PERM filings (non-audited) that were filed in September 2009. Granted, that's a far way from their estimated processing time of 45-90 days when they implemented PERM in March 2005, but significantly faster than what they have actually been processing the last two years. While the Department of Labor will credit some of the faster time to "increased efficiencies" or other internal improvements, in fact a large part of it is due to a lower volume of case filings.

So what does this mean? I believe we will reach a time a few years from now where immigrant cases will move much more quickly. The current backlog that we have in visa numbers (refer to April Visa Bulletin from the Department of State) is due to various factors including:

(1) a booming economy (unemployment rate was low, below 6% from 2001 to 2007 despite a growth in population from 285,039,803 to 301,290,332 from 2001 to 2007);

(2) changes in the law (an influx of 245i cases which were filed in late 2000 and early 2001 but not felt for several years because labor certification cases were stuck at processing centers of Department of Labor for years and finally started moving through the system when PERM was implemented in 2005);

(3) revamping of labor certification process in March 2005 (provided much quicker processing times, albeit for only the first two years, which resulted in an influx of I-140 and I-485 filings in 2005-2007);

(4) changes in immigration processing (the USCIS backlog reduction effort to process I-485 "visa available" cases within 6 months coupled with the influx of I-485 case filings in the summer of 2007 when visa numbers were current).

However, since 2008, the number of filings at all stages (labor certification, I-140, and I-485) has decreased. That means when the 2008-2010 cases come up for processing, there will not be as many cases (therefore, not consuming as many visa numbers). Since visa retrogression is an issue of supply and demand, the lower demand for visa numbers in the future will benefit those who have filed cases in the last two years or file in the near future. In essence, the time is ripe for a permanent resident filing now. Just like the stock market, it's better to get in when the numbers are low.

UPDATE ON CAPITOL HILL

It's pretty quiet on Capitol Hill this week since Congress is at recess in their home districts. Good thing, because last week when I was there lobbying the tension was pretty thick on Capitol Hill. First, members of Congress were obviously exhausted from the battle on passing the healthcare reform bill. Second, members just aren't cooperating with one another right now.

One House Representative said that he has never seen the tension so thick - that each week it seems to worsen and the leaders in Congress are not sharing information with the Rank and File members.

Of the members and staffers I met with, there seemed to be a consensus that comprehensive immigration reform will not likely pass this year, for obvious reasons: (1) the economy; (2) the divisiveness among the Republicans and the Democrats right now; and (3) the political impact for the midterm elections in November. Members and staffers were also doubtful that piecemeal legislation on immigration would pass this year.

However, several opined that there could be some gains from pushing CIR to a vote, even if it fails. By doing so, the President and the Democrats will be viewed as "keeping their promise" to move comprehensive immigration reform. Further, it would finally open the door for piecemeal legislation on immigration. If a CIR bill is introduced (which is likely) and actually moves through both House and Senate for a vote, it will have to be on the Schumer and Graham bill that is expected to be introduced. Members were unanimous in saying the Gutierrez bill introduced in December isn't a possibility - it was termed as dead on arrival. In fact, members acted as if there weren't any CIR bill proposed yet -- it was as if that bill was totally meaningless.

It was clear that the H-1b category is still not favored by Congress. The best potential for peicemeal legislation appeared to be in the area of retrogression relief and/or healthcare reform. In fact, one staffer said it would be key to tie immigration legislation into how it can benefit the healthcare reform bill. In other words, now that Congress has passed healthcare reform, the focus will shift to how to make it work and supplying more healthcare workers such as foreign nurses, physicians, therapists, etc. could tie into that bill, especially since there are estimates that 30 million more people will be receiving healthcare. However, the staffer of a well-known Congressional member favoring immigration said it's imperative for members to hear from hospitals about the need. They just aren't hearing the need right now in the field of nursing because so many nurses have returned to the workforce because of the economy, thereby creating a "false impression" that there is no longer a shortage without looking at the long-term implications.

POLICY REPORTS ON H-1B

The National Foundation for American Policy issued two reports today. One report, "H-1B Visas by the Numbers: 2010 and Beyond”, shows new H-1B visa holders represented only 0.06 percent of the U.S. civilian labor force in 2009. The report also cites USCIS data that in FY 2009 less than 6 percent of new H-1B visas went to Indian technology companies and the number of new H-1B visas utilized by Indian technology firms fell by 70 percent between FY 2006 and FY 2009. In FY 2009, 27,288 different employers hired at least one individual on a new H-1B petition, according to USCIS.

In the second report, "Take a Memo: USCIS Adds Costs, Uncertainty and Questionable Legality in Redefining the Employer-Employee Relationship", Sherry Neal and Michael Hammond point out some problems with the January 2010 Neufeld memo, including the inconsistencies with other provisions of immigration law and other federal laws. The report notes, "the memorandum should be withdrawn and changes to the H-1B laws should be left to Congress, or at the very least, any new rules should be issued pursuant to the Adminstrative Procedures Act."

The studies can be found on the NFAP website at http://www.nfap.com/. The National Foundation for American Policy (NFAP) is a 501(c)(3) non-profit, non-partisan public policy research organization based in Arlington, Virginia focusing on trade, immigration and related issues. The Advisory Board members include Columbia University economist Jagdish Bhagwati, Ohio University economist Richard Vedder and other prominent individuals. Over the past 24 months, NFAP’s research has been written about in the Wall Street Journal, the New York Times, the Washington Post, and other major media outlets.

MIKE HAMMOND EDITORIAL ON USCIS MEETING

On Friday, the USCIS held an open forum to discuss the impact of the January Neufeld memo which prohibited “job shops” from participating in the H-1b program, and, specifically, the impact to healthcare staffing companies. Both Sherry Neal and myself attended along with several other attorneys that represent physician and therapy staffing companies. First, I do have to give kudos to the USCIS for even having such a session. Certainly, it would’ve been nice to have such an information gathering session PRIOR to the release of a policy memo that changes 30 plus years of practice but, hey, better late than never.

Secondly, the motive behind the memo attacking “job shops” was confirmed. The memo was released with the intention of preventing “job shops” from participating in the H-1b program. Follow the bouncing ball:

Lots of “fraud” in the H-1b program perceived by certain Congressional members (refer to the “fraud” report from the fall of 2008 which by the way is one of the most flawed reports I have ever seen) +
Lots of fraud observed by USCIS officials from site investigations and other initiatives +
The majority of both the “fake fraud” touted by Congressional members and the real fraud observed by USCIS was committed by “job shops” +
Limited to no impact of anti-fraud measures from the enforcement side of USCIS and/or DOL

= “Eureka moment” We can prevent fraud by simply declaring the class most responsible for the fraud ineligible to file.

It started with the requirement of end client letters, followed by an incredulous interpretation of the itinerary requirement and culminated with the January Neufeld memo. The USCIS is smart, they knew that a memo that simply stated “ No More Job Shops Need Apply” would likely have trouble passing APA muster and even some Congressional members may get a bit perturbed at having their legislative powers usurped but, throw in an interpretation of the employer-employee definition and cite some Supreme Court cases and presto: you have reached the same result. The fact that the USCIS definition of employer-employee is in disagreement with every other federal and state agency and 30 + years of practice from their own agency be damned. They got the result they wanted !

But, now, we arrive at the reason for the Friday meeting, “unintended consequences”. The vast majority of the fraud was being committed by those nasty IT job shops and preventing medical doctors, physical therapists, and occupational therapists from obtaining H-1b visas was not the result the USCIS was trying to achieve. Oops, they didn't even consider the impact to the healthcare field. Alas, a solution that allows medical “job shops” to operate without allowing IT “job shops” is being sought and frankly, I left the meeting with a feeling that a solution will be achieved. Whether it is based upon a simple “carve-out” of medical occupations or the production of a new list of incidences of employment; specifically, those that a medical staffing company may have an easier time meeting eg. License, malpractice insurance, etc or whether the word will trickle down to the officers at the service center, whispered from cubicle to cubicle and at each smoke break, “pssst, we aren’t targeting the medical staffing companies, only those horrible IT shops, wink wink !”

All in all, it was a great meeting and I left with the conclusion that a legislative solution is needed. A unique visa for job shops of all types with significant anti-fraud measures i.e. the type that make your knees ache in the middle of the night if you are a job shop owner and are thinking about benching someone without pay. I call on Congressional members to do your jobs, legislate. Don’t dump this problem in the laps of the USCIS.

UPDATE ON USCIS MEETING ON NEUFELD MEMO

During the Spring AILA conference on Friday, March 26, USCIS Director Alejandro Mayorkas spoke of the Neufeld memo only briefly. He reiterated the goal of transparency and reaching out to stakeholders on how to improve processes, but that the Neufeld memo was an example of where they had it backwards (issuing a memo and then later reaching out for the impact). He said, "we will right any wrong that has been memorialized in that memo."

Later in the day, the USCIS held its second open discussion topic on the Neufeld memo -- this meeting focused solely on the impact to the healthcare industry. USCIS has said they will be issuing further clarification or guidance (not necessarily withdrawing the memo) by the middle of April. HLG attorneys Mike Hammond and Sherry Neal attended the session in-person. Mike Hammond pointed out to USCIS that any focus on "control" should center on control of the "employee" (terms of employment such as location, job assignment, salary, etc.) not control of the "day-to-day activities of the employee".

MEETING ON NEUFELD MEMO

The USCIS will be holding another meeting in Washington this coming Friday, March 26th on the impact of the January 8th Neufeld memo. At this meeting, the USCIS will listen specifically to the impact of the memo on the healthcare industry. The meeting will be held at 3:00 PM.

If you want to attend the meeting in-person or by phone RSVP to suzanne.clarke@dhs.gov. HLG will be attending in person.

AILA SPEAKS OUT ON NEUFELD MEMO

The American Immigration Lawyers Association (AILA) sent a letter to USCIS today, requesting that the January 8th "Neufeld memo" on the "employer-employee relationship" be withdrawn. In the letter, AILA pointed to four key problems with the memo:

1. The memo is a new policy that is inconsistent with current regulations: The regulations already define "employer" for H-1b context and indicates control when the employer "may hire, pay, fire, supervise, or otherwise control the work of any such employee." The Neufeld memo adds additional requirements beyond what the regulations say.

2. The policy imposes significant economic burdens on business, at time when the government should be trying to encourage business growth: Employers will have to spend considerable time and money gathering additional evidence to file an H-1b petition or respond to a request for evidence. The additional paperwork and increased "unpredictability" of adjudications has a chilling effect on employers who want to hire H-1b workers. Also, AILA pointed to several studies of the positive economic of H-1b employment, including one study that found that "U.S. technology companies increase their employment by an average of five U.S. workers for each H-1b worker they hire."

3. The memo will have serious adverse affects on employers and individuals: AILA pointed to state restrictions on physicians being employed directly by hospitals and to locum tenens and other temporary placement arrangements in the healthcare area (including therapists) where it will be difficult to satisfy the standards of the memo. AILA also pointed to government contracts as not being able to meet the standards. The memo will also negatively affect H-1b workers who file to change employers or extend status, and may have adverse effects on their permanent residence petitions. AILA noted that it is not just the H-1b petitioner and the H-1b worker that are impacted -- the end-users are also effected as they may experience a disruption in work for an H-1b worker that is not able to extend status or when additional staffing is needed.

4. The policy is spreading to other nonimmigrant and immigrant petitions: AILA noted that USCIS has been adjudicating L-1 petitions and I-140 petitions based upon this new, heightened standard of employer-employee relationship.

AILA also re-iterated that the new policy is a violation of the Adminstrative Procedures Act, and urged that the memo be withdrawn immediately.

THE HEAT IS ON IN D.C.

Two big legislative issues – healthcare reform and immigration reform – will be the central focus in Washington, D.C. during the next week.

The House is expected to vote Sunday on the healthcare reform legislation. If it is passed, it will go to the Senate for final changes. Meanwhile, thousands of immigrants are expected to march in D.C. this weekend in support of comprehensive immigration reform. The timing of the march coincides with Senator Charles Schumer and Senator Lindsey Graham’s immigration reform plan outlined yesterday. Among other things, the plan calls for a biometric-type social security card to prove work eligibility, a temporary worker program, and a path for legalization for undocumented persons.

Also, next Thursday March 25th is the annual “Lobby Day” for the American Immigration Lawyers Association. Hundreds of immigration attorneys and some interested clients meet with members of Congress and/or their staffers to discuss immigration.

Schumer and Graham Release Immigration Plan in Washington Post

Democratic Senator Charles E. Schumer and Republican Senator Lindsey Graham released their plan to overhaul the immigration system in the Washington Post today. Although most of their plan is directed at reducing illegal immigration through biometric Social Security cards, strengthening border security, admitting temporary workers, and implementing a fair path to legalization, they do touch upon "developing a rational legal immigration system" to ensure future economic prosperity. As part of this rational system they mention awarding green cards to immigrants who have received their PhDs or Master's degrees in science, technology, engineering or math from a US university. They write "It makes no sense to enducate the world's future inventors and entrepreneurs and then force them to leave when they are able to contribute to our economy." They also mention creating a system for admitting lower-skilled workers which would allow employer to hire immigrants if they can show they were unsuccessful in recruiting from the American workforce. Ending their plan, they urge for bipartisan support writing, "The American people deserve more than empty rhetoric and impractical calls for mass deportation. We urge the public and our colleagues to join our bipartisan efforts in enacting these reforms." HLG will keep you updated on the progress of this plan.
For full article see: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/17/AR2010031703115.html?hpid=opinionsbox1

OCCUPATIONAL THERAPISTS - CERTIFICATE RENEWALS

Like CGFNS, the NBCOT (National Board for Certification in Occupational Therapy) waives the English language requirement for certain occupational therapists renewing a healthcare certificate. NBCOT requires applicants to retake the English examination only if the individual has resided outside of the country for three consecutive years or more since receiving their last certificate. The requirement is waived for all other individuals.

The NBCOT certification is granted for a 3-year period. The renewal period runs from January until March annually, regardless of the month in which the initial certification was achieved. The deadline – March 31 – is fast approaching.

VISASCREEN RENEWALS - ENGLISH EXAMS WAIVED

CGFNS has announced that effective March 1 2010, certain VisaScreen® renewal applicants will not have to re-take an English language test. The exemption applies to those who can demonstrate employment in the United States in the health care profession that is designated on their VisaScreen® certificate if the employment was for at least 27–36 months — including nine months of the year before the date an applicant submits the renewal application. They will need to have their employer submit an employment summary on corporate letterhead with the appropriate signature for the English requirement to be waived. CGFNS has made the U.S. Department of Health and Human Services aware of this policy change.

In January HLG reported that this change in policy was coming, in the January 25th blog post Keep Healthcare Certificate Valid.

VISA BULLETIN......ONE STEP CLOSER

The Department of State Visa Bulletin for immigrant visa numbers moved slightly this month. The April Visa Bulletin (which takes effect April 1st) shows movement of about 1 1/2 months for the third preference categories for Philippines, China and worldwide category and slightly more than 2 months movement for India.

Based upon earlier projections from the State Department for this year, the third preference for the Philippines and worldwide category is expected to make a two-year jump before the end of this fiscal year (October 1st), to move forward with cases with priority dates in the range of April to August 2005. The third preference category for China and India is on pace to move only 5 more months before the end of this fiscal year, based upon Department of State projections.

The Visa Numbers are as follows:

1st Preference: Current for all categories
2nd Preference: Current -worldwide, Mexico & Philippines; China: 22 Aug 05; India 01 Feb 05;
3rd Preference: Worldwide, China & Phil. 01 Feb. 03; India: 08 Sept. 01; Mexico: 01 July 02;

MEETINGS.......BUT WHAT RESULT?

The President met with Senators Chuck Schumer (D-NY) and Lindsey Graham (R-SC), yesterday, two Senators who are leading the effort to introduce an immigration bill in the Senate. The President also had two other meetings on immigration yesterday: one with the Congressional Hispanic Caucus and another with a group of pro-reform advocates including national ethnic groups, civil rights groups, and immigrant advocacy groups.

The meetings show immigration is still a priority for the President and others, but the likelihood of comprehensive immigration reform being passed this year is slim. There are several factors weighing against it: (1) healthcare reform has not been passed, and is a significant priority for the President; (2) we are less than 7 months away from the mid-term elections and Congress is cautious of its stance on controversial issues; (3) the economy is still sluggish and unemployment rate is high, which makes any legislation about peripheral issues less of a priority; (4) a “legalization” program is difficult to grasp during a recession; and (5) comprehensive immigration reform perhaps has too many issues to agree on, as it tries to cover legal immigration and illegal immigration in a full swoop.

Consequently, immigrants should not rely on legislative fixes for this year. Instead, immigrants and companies who employ them should plan based upon the current system.

Circuit Court Rules USCIS Unlawfully Imposed Arbitrary Requirements

This just in from the American Immigration Council:

Washington D.C. - In a decision issued today, the Ninth Circuit Court of Appeals adopted the arguments of the Legal Action Center (LAC), of the American Immigration Council, that the United States Citizenship and Immigration Services (USCIS) unlawfully imposed extra-regulatory requirements on a petition for a worker of "extraordinary ability" (EB-1). The case in question, Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate "the research community's reactions to his [scholarly] publications" - an arbitrary requirement with no justification in the law.

In today's decision, the Ninth Circuit amended its previous ruling and reversed the agency's interpretation. The court held that "neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations]." The Ninth Circuit also found that the agency impermissibly added another unlawful criteria as well.

The case stems from a 2009 Ninth Circuit Court ruling in favor of USCIS. Following that ruling, the LAC and NAFSA submitted an amicus brief in support of rehearing Kazarian's case. The LAC argued that USCIS erred by adding an additional requirement that did not exist under the law. Kazarian was represented pro bono in the rehearing petition by Wolfsdorf Immigration Law Group.

Today's decision sends a clear message that USCIS must follow the law and provide a fair process. Unfortunately, this case is not an isolated incident and not the first time the LAC has successfully challenged the policies and practices of the agency. The LAC will continue to challenge similar attempts by the government to operate outside of the law.

"Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren't in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores," said Benjamin Johnson, Executive Director of the American Immigration Council.

HLG Comment:

This is exciting because it is almost directly on point with the issue at hand with the Neufeld Memo - can USCIS simply make up its own rules, or arbitrarily add additional requirements to existing law? The Ninth Circuit says absolutely not!

Senators Propose StartUp Visa Act of 2010

On Feb. 24, 2010, Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced legislation into Congress known as the StartUp Visa Act of 2010. This Act was created to drive job creation and increase America's global competiveness by assisting foreign national entrepreneurs secure visas to enter the United States, and eventually obtain permanent residency status. The Act will allow a foreign national to receive a two year visa (temporarily called the EB-6 visa) if they can show a qualified US investor is willing to invest $250,000 in their startup business. If after two years the foreign national can show that he or she has generated five full time jobs in the US and either attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she will receive permanent legal resident status.
"Global competition for talent and investment grows more intense daily and the United States must step up or be left behind," comments Senator Kerry, "[e]verywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors. Creating a new magnet for innovations and innovators to come to the United States and create jobs here will offer our economy a double shot in the arm- robust creation at home and reaffirmation that we're the world's best place to do business."
Already more than 160 venture capitalists from around the national have endorsed the senator's proposal. If passed, this Act will offer entrepreneurial immigrants an opportunity to bring business to the US, create jobs, and obtain permanent legal residency status- a win-win situation for all involved.
For the text of the Act see: http://startupvisa.files.wordpress.com/2010/02/startup-visa-act_-final-final-1.pdf

USCIS Meeting for Staffing Companies Re: the Neufeld Memo

Personal Message from Michael Hammond

We have just been advised that the USCIS is holding a meeting this Thursday, February 18th, in Washington DC to allow questions and receive input regarding the recent Neufeld Memo. If the staffing model and the use of H-1b workers represents a large portion of your business, I strongly urge you to attend in person. At the very least, I encourage you to attend via phone. I will be attending in person. If you have any questions, please let me know.

Text of the Notice we Received This Afternoon

To: USCIS National Stakeholders
From: U.S. Citizenship & Immigration Services - Office of Public Engagement
Subject: Collaboration Session – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

February 18, 2010 @ 1:00pm EST

Tomich Center, 111 Massachusetts Ave NW, Washington, D.C.

The USCIS Office of Public Engagement invites you to participate in a collaboration session to discuss the implementation of the memo issued on January 8, 2010 which provides guidance on determining if a valid employeremployee relationship exists. A copy of the memorandum is attached along with this invitation.

We are interested in hearing feedback and input on the impact of this guidance and to understand any concerns that stakeholders may have. There are two ways to attend this meeting:

In person – please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov or (202) 272-1213. Be sure to arrive at least 15 minutes early to allow extra time to be processed through security and bring a photo I.D.

Via telephone – call-in information will be provided when you respond. Please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov. We hope you will be able to join in this important discussion.

DOS Proposes Fee Hike

In a Federal Register Notice released today, the Department of State announced a new fee structure for cases to be processed at consulates and embassies abroad.

Presently, DOS processes all Immigrant Visas (family based or employment based) at a fee of $355 per person. The new proposed system will be a 4-tiered fee structure with a lower fee for family based immigrant visas ($330) and a significantly higher fee for employment based immigrant visas ($720). Other rates will apply to self-petitioned cases and humanitarian cases.

In family based cases, the Affidavit of Support review fee is proposed to go from $70 to $88.

The Notice does not include an increase in nonimmigrant visa application fees, which are currently $131 USD.

To read the Notice in its entirety, please visit: http://edocket.access.gpo.gov/2010/pdf/2010-2816.pdf

INVENTORY OF NVC CASES:

The National Visa Center has issued a report of the number of visa applications in the employment-based categories and family-based categories pending at the NVC. What is most noteworthy for foreign nurses from the Philippines is that the NVC has 45,331 EB3 cases from the Philippines – that represents 43.8% of the 103,448 total EB3 cases at NVC. By comparison, India has 18.8% of the pending EB3 cases at NVC and China has 6.9% of the pending EB3 cases.

However, that is not too surprising considering the following:
(1) The vast majority of Filipino immigrants in the employment-based category are nurses (because they don’t typically qualify for a nonimmigrant visa their immigrant cases fall within the purview of NVC rather than I-485 adjustment of status cases). In contrast, the number of pending I-485 cases (those in the U.S. on a temporary status and adjusting to permanent residence) for India are more than 5 times (5x) higher than the Philippines.
(2) Retrogression for nurses has been in effect since October 2006 (with the exception of the two month reprieve in the summer of 2007 when dates were current; however, only a small percentage of nurses were able to get through that narrow window of opportunity to get the immigrant visa). Given the I-140 and NVC processing times in NVC, most of the cases took at least a year to process, therefore, most of the applicants that received permanent residence were applicants who had filed in 2005 or earlier. Overall, the number of pending EB3 cases for the Philippines is not bad when you consider it is an accumulation of almost five years of cases due to retrogression.
(3) USCIS has been processing I-140 cases more quickly in the last six months, thus some of the cases that appear on the NVC inventory chart are cases that were previously recorded in earlier charts for “Pending I-140’s” or “Approved I-140’s” from data the USCIS issued last year.

By law, the minimum number of employment based green cards allowed per year is 140,000. The “actual” number of employment based green cards that have been issued in the EB3 category (overall for all countries) during the last three years is as follows: 89,922 in 2006, 85,030 in 2007, and 48,903 in 2008. Note: the larger number in 2006 and 2007 is in part due to the Schedule A legislation that provided for an additional 50,000 immigrant visas.

There are two “positive” points to keep in mind:
1) According to the NVC report, the “total” number of Filipino cases in all the first three employment-based categories is 47,420. Thus, 45,331 of the total 47,420 Filipino cases are in the third preference category (only 2,089 in the 1st preference and 2nd preference category for the Philippines). That is important because the unused visa numbers for the Philippines in the first preference category and second preference category get to “trickle down” to the third preference category for the Philippines.
2) There are at least some cases that are duplicates, and thus fall out of the system. Some applicants have lost their sponsorship (company went out of business and/or job no longer available) and have obtained sponsorship through a second employer. Thus, some applicants have more than one case pending.

ENTRIES AT THE NEWARK AIRPORT

During the last week, the headquarters of the Customs and Border Patrol has provided AILA with information about the enforcement activities at the Newark airport. The CBP inspectors at the Newark airport have been assisting in an investigation of certain H-1b nonimmigrants and H-1b companies. Many of the recent cases where individuals were detained involved companies that were apparently under investigation by ICE (Immigration and Customs Enforcement).

However, the Newark Airport has implemented a new policy for other situations as well. The following should be noted:

1. RANDOM CHECKS: The Newark airport is doing random checks for returning H-1b, L-1 and other employment-based visa holders. If there are questions about inadmissibility, the person will be sent to secondary inspection for further interview.

2. LAWFUL PERMANENT RESIDENTS: Lawful Permanent Residents with a criminal conviction after 1998 should expect to be detained. If the airport cannot obtain a copy of the conviction record within 24 hours, the person may be released. The person should be proactive in traveling with a court certified copy of the court disposition - and should consult with an attorney before traveling.

3. CONDITONAL PERMANENT RESIDENTS: Individuals with pending I-751 petitions (applications to remove conditional permanent residence granted to one who married a U.S. citizen) will be sent to secondary inspection for further interview to verify the validity of the petition.

4. EMPLOYER VERIFICATION: Employers may be contacted to verify/substantiate the employment details in the petition of an H-1b, L-1 or other employment-based visa holder entering the Newark airport.

5. EMPLOYER DATA: Employers and employees should expect that CBP may check other sources such as company websites for consistency with the information in the petitions.

HEALTHCARE PUBLICATIONS

Three books have recently been published which feature articles by Hammond Law Group partners.

The Nurse Immigration Book, published by Immigration Daily, includes an article by Michael Hammond titled, “Managing Or Achieving Expectations: The Key To Success”. For details, see http://www.ilw.com/.

The PERM Book, 2008-2009 Edition, published by Immigration Daily, includes an article by Sherry Neal titled, “Step-by-Step for Schedule-A Applications”. For details, see http://www.aila.org/.

Immigration Options for Nurses and Allied Healthcare Workers, published by American Immigration Lawyers Association, includes an article by Sherry Neal titled, “Nonimmigrant Employment Options for Nurses and Allied Heatlhcare Workers”. For details, see http://www.aila.org/.

Unused FY 2010 H-1B1 Numbers to be Counted in FY 2011 Cap

In a recent USCIS Stakeholders Meeting, AILA asked for clarification on how unused H-1B1s for Singaporean and Chileans are counted back. Under the Chile/Singapore Free Trade Agreement, 6,800 H-1B cases are reserved per cap for specialty occupation cases from Singapore and Chile. The USCIS responded to AILA by stating that unused H-1B1 numbers from a fiscal year will be reallocated for use in the subsequent fiscal year.

For example, the 6,100 unused Chile/Singapore H-1B1s from FY2009 were added back to the 58,200 regular cap numbers available for FY 2010 to get 64,300 regular cap visas available for FY 2010 (this excludes the 20,000 master’s cap exemption).

Thus far, only 129 of the 6,800 H-1B1 cases under the FY 2010 cap have been used. This means that potentially more than 6600 additional H-1B cap cases will be accepted under the FY 2011 cap, which opens in April 1, 2010. Please note, the USCIS did state that although the regular H-1B cap has been closed, they continue to accept reques for H-1B1 visas or change of status cases.

NEUFIELD MEMO BEING CHALLENGED

The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) of which Michael Hammond is a member. They met this week and the hot topic of discussion was the recently released Neufeld memo (See January 13th blog post and the January HLG Business Immigration Monthly for more details on the memo). There is a strong belief that the memo was issued in violation of the Administrative Procedures Act. There is also the belief that the memo violates long-standing precedent and established law. It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter.

The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse specifically dedicated to collecting and posting relevant documents and information on this issue. This will allow all interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. You can contact Mike Hammond at mfh@hammondlawfirm.com for additional information.

JOBS ARE PRIORITY #1

In the State of the Union speech last night, President Obama voiced a priority in decreasing the unemployment rate for people who are in the U.S. The unemployment rate is at 10%. From 2001 to 2007 the unemployment rate in the U.S. was below 6% despite more than 15 million population growth, according to the U.S. Bureau of Labor Statistics and U.S Census Bureau.

President Obama spoke vaguely about immigration. His main point was, “We should continue the work of fixing our broken immigration system - to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nation.” Obama’s reference to immigration came about an hour into his speech, perhaps notably signaling that it is a low priority right now.

The reality is immigration reform has a low chance of being passed the first half of 2010. And many inside Washington concur that if it doesn’t get passed by Memorial Day weekend, then it will be put aside until after the November elections since most members of Congress will want to dodge the topic in the upcoming elections. Further, the results of the November elections could signal whether comprehensive immigration reform even gets reconsidered in 2011 or whether it will be 2012 until the discussions resume.

If CIR is put to rest the first half of the year, it could open the way for individual aspects of immigration (such as Schedule A relief) to get added to another bill. Of course, the economy will still play a part in convincing Congress that legislation for more visas is needed.

VSC Reminds J-1 Waiver Physicians -- you are exempt from H-1B cap!

The Vermont Service Center recently published a set of "filing tips" for foreign nationals who have received J-1 waivers. Specifically the Service wanted to issue a reminder that only J-1 Physicians who have received a waiver in exchange for a 3yr service commitment in an underserved area are exempt from the cap on the basis of their J-1 waiver alone.

All other J-1 waiver recipients (no objection, hardship, or persecution) must be counted against the cap or must qualify for a cap exemption through their employer's non-profit affiliation with an institution of higher education or non-profit research status.

If you have questions about your J-1 waiver or how to transition from J-1 to H-1B, please contact us!

KEEP HEALTHCARE CERTIFICATE VALID:

While retrogression continues, healthcare workers who require a healthcare certificate need to check the expiration on their healthcare certificate. The healthcare certificates are valid for only 5 years and an applicant must have a valid certificate at the time of the consulate interview or adjustment of status (for permanent residence – “green card”).

CGFNS has proposed to the Department of Homeland Security that the English test be waived for applicants seeking a renewal of the healthcare certificate IF employed in the U.S. for at least 27 months out of the three years preceding the expiration of the healthcare certificate. Here’s the language CGFNS sent to DHS and DHHS regarding the policy:

As we end the fifth year of implementation of Section 212(a)(5)(C ), we believe that English language proficiency can be re-established within the original intent of 212.15(k)(4)(viii) by requiring the VisaScreen certificate holder to (1) submit an updated score report from one of the designated English proficiency language testing organizations, or (2) demonstrate that he/she has been employed in a health care profession in the U.S. for a designated period. Employment in a health care profession in the United States must be for a period of at least 27 of 36 months preceding the expiration of the VisaScreen certificate, including 9 of the 12 months, immediately preceding the submission of a renewal application.

CGFNS is in the process of defining what can be used to document the work period.

PRO-IMMIGRANT SEAT UP FOR ELECTION

The Senate seat long been held by Senator Ed Kennedy, who passed away last year, is up for election is in the state of Massachusetts today. The race is between Democrat Martha Coakley and Republican Scott Brown. Normally, a single special state election is inconsequential on a national level. But if Republican Scott Brown wins this election, the Democrats would lose their supermajority and may thwart the efforts of Congress to get health care reform passed.

Both health care reform and immigration reform have been battling for attention. Comprehensive immigration reform legislation has been placed on the “back-burner” until health care reform is “finalized” one way or the other: either passed or put to rest. Both bills – health care reform and immigration reform – are hotly contested as to whether the proposed legislation is the right method of reform. It’s also been questioned whether Congress can effectively take on two major reform bills in the same year.

H-1Bs Encountering Problems at Airports

We have recently heard of accounts from H-1B workers entering from the Newark and Seattle airports encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases are occuring out of the Newark aiport and are primarily aimed at Indian H-1B workers employed by IT consulting firms. CBP officers are not only subjecting such workers to a litany of questions (one worker reported being questioned for over an hour) but the CBP officers are also voicing their opinions regarding the issuance of the initial H-1B. One officer is reported to have said that it was not legitimate for an IT consulting firm to be making a profit by billing the client for the services of an H-1B employee; another officer claimed that the H-1B petitioner should have been the client, not the IT consulting company. Further, another officer made the comment that H-1B workers was receiving salaries higher than Americans or taking away jobs from Americans. CBP questioning is so leading and coercive that the H-1B worker has no choice but to agree with the CBP officers. Obviously this line of questioning goes against many of the basic tenets of the immigration regulations. We are working hard to put an end to this type of "rogue" behavior by some CBP officers. If you know of an such instance occurring, please contact your HLG attorney immediately.

GUIDANCE ON H-1B'S FOR THIRD PARTY PLACEMENT

At the annual AILA immigration conference in June, the USCIS promised that a memo would be forthcoming on the issue of H-1b. Now the USCIS has issued the memo providing guidance on the issue of “employer-employee relationship” for H-1b’s. This memo is especially important to petitioners who place H-1b workers at third-party sites, such as information technology staffing companies and healthcare staffing companies.

The USCIS has long used the test of “right to control” to determine the employer-employee relationship. This memo specifies some factors that USCIS will look at to determine whether the petitioner has the right to control the H-1b beneficiary:

1) Whether the petitioner supervises the beneficiary (off-site or on-site)
2) How supervision is maintained (i.e. weekly calls, reporting back to main office, etc.)
3) Whether the right to control is on a day-to-day basis
4) Whether the petitioner provides tools or equipment needed to perform the duties
5) Whether petitioner has the authority to hire, fire, and pay
6) Whether the petitioner evaluates work-product of the beneficiary
7) Whether the petitioner provides employee benefits
8) Whether the petitioner claims the beneficiary for tax purposes
9) Whether the beneficiary uses any proprietary information of the petitioner
10) Whether the work-product is directly linked to the petitioner’s line of business.

The USCIS acknowledges that no single factor is determinative; rather, the decision will be made on the “totality of the circumstances.”

The memo instructs adjudicators who issue RFE’s on this issue to “specifically state what is at issue” instead of issuing generic, boiler-plate RFE’s. Also, the memo says that adjudicators cannot mandate a specific type of evidence unless it is required by the Regulations.

VISA BULLETIN --- FEBRUARY 2010

The Deparment of State has released the February 2010 Visa Bulletin. There is very limited change from the current month: The second preference category for all countries remained the same, the third preference category for India and Mexico remained the same, and the third preference category for the Philippines, China and all other countries moved from August 1, 2002 to September 2002.

Despite the small movement in the February visa bulletin, we can expect to see further movements as the year progresses, especially in the third preference category for the Philippines which has a smaller number of cases in the backlog right now.

WHAT ABOUT SCHEDULE A RELIEF?

The Comprehensive Immigration Reform bill that Rep. Gutierrez introduced in Congress yesterday indirectly benefits Schedule A occupations (registered nurses and physical therapists) in many ways.

Here's how it helps:

1. The bill provides a recapture of unused visa numbers from 1992 to 2008.

2. The bill provides an allowance for future unused visa numbers to roll over to the next fiscal year, thereby creating a situation where we always get the full allotment of visas.

3. The bill increases the per country limit -- this benefits the countries that are normally backlogged (Philippines, India and China) by allowing more visa numbers.

4. The bill exempts spouses and children from the annual quota. The historical data since 2001 shows an average of 2.3 dependents per person. Therefore, exempting the dependents from the quota will allow 2.3x more visa numbers.

5. The bill allows a person to file for I-485 Adjustment of Status even when priority dates are not current if the person pays a $500 supplemental fee. This means that a person in the U.S. on a visitor status, student status, or other lawful status (or out of status for a period of less than 180 days) can proceed with the I-485 application and obtain work authorization and remain legally in the U.S. while the USCIS processes the application.

The bill that has been introduced is in the very early stages. Before it becomes a final law, it will go through changes in both the House and Senate. Of course, there is no guarantee that any of it will become law.

IMMIGRATION LEGISLATION INTRODUCED

Today Rep. Gutierrez (D-IL) introduced his much-promised Comprehensive Immigration Reform Bill in Congress. The Bill is called Comprehensive Immigration Reform for America’s Safety and Protection (CIR ASAP). A few of the key points of the bill include:

BACKLOG REDUCTION: A recapture of unused employment-based visas from fiscal years 1992-2008; allowance for future unused visa numbers to roll over to the next fiscal; exemption of spouses and children from the annual cap; increase in the per-country limit; and ability to file for Adjustment of Status before a visa number is available by paying a supplemental fee of $500 (though the visa cannot be issued until a visa number is available, the filing can allow for work authorization, travel authorization and maintenance of status).

WORK VERIFICATION: Makes E-verify work verification application to all employers; phases-in the system to make it applicable to all workers (current employees and new hires); creates additional penalties for an employer’s failure to follow the E-verify program

H-1b AND L-1 VISA PROGRAM: Creates requirement for employers to attempt to recruit U.S. workers before it can apply for an H-1b; increases penalties for H-1b violations; and creates penalties for L-1 violations

UNDOCUMENTED IMMIGRANTS: Creates a six-year conditional nonimmigrant status to foreign nationals in the U.S. illegally, including work authorization and travel authorization; waives unlawful presence bars; and provides a path to permanent residence and citizenship

Rep. Gutierrez said, "We have waited patiently for a workable solution to our immigration crisis to be taken up by this Congress and our President. The time for waiting is over.”

IMMIGRANT WORKERS IN HEALTHCARE

The Immigration Policy Center (formerly known as American Immigration Law Foundation) issued a policy report today regarding "The Role of Immigrant Workers in U.S. Healthcare".

The report noted that the healthcare shortage occupations are expected to increase in the coming years. The reported noted a November 15, 2009 estimate by the Deparment of Health and Human Services that it would take an additional 16,680 physicians to adequately meet the primary-care medical needs of the population in primary medical health shortage areas. And a study released in July/August 2009 showed that despite the influx of RN's that have recently entered or returned to the U.S. workforce projections indicate a shortage of about 260,000 RN's by 2025. The report also included statistics of immigrant healthcare workers in the U.S. and noted 27% of physicians and surgeons in the U.S. are foreign nationals and 20% of all nursing, psychiatric and home health aides in the U.S. are foreign nationals. While these statistics were from 2006 (with current figures not yet available) all indication is that the numbers have remained fairly steady in the last few years.

VISA PROJECTIONS

The U.S. Department of State has issued the Visa Bulletin for January 2010. Although there is very little movement forward this month, the Department of State has issued some projections for the future.

Not surprisingly, the Department of State said some it is unlikely there will be any cut-offs in the First Preference Categories. China and India in the second preference category have the potential to become unavailable due to heavy demand.

The Department of State issued the following projections for movement during Fiscal Year 2010 (which ends September 30, 2010):

Second Preference Category:
* China: should process through October 2005 cases
* India: should process early March 2005 cases

Third Preference Category:
* Worldwide category: should process through August 2005 cases
* China: should process through September 2003 cases
* India: should process through February 2002 cases
* Mexico: should process through June 2004 cases
* Philippines: should process through August 2005 cases

This does not take into account cases that may be withdrawn or denied, which would create further movement for cases that remain in the pipeline.

These projections from the Department of State are based upon a combination of statistics that have been made available in the last few months, such as cases pending at the Department of Labor, cases pending at USCIS with approved I-140's, and I-485 cases pending at USCIS.

These projections are very much consistent with what Hammond Law Group predicted at the Healthcare Symposium in early November. Hammond Law Group continues to believe the movement for third preference category from the Philippines will begin to see steady movement.

If you would like to obtain the statistics and projections that Hammond Law Group provided at the symposium, please email Sherry Neal at sln@hammondlawfirm.com

Latest H-1B Cap Count

The USCIS has released the latest H-1B cap numbers. As of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

On December 1st, USCIS representatives shared some latest news on the H-1b cap usage. USCIS indicated that there has been a recent "uptick" in receipts in the last two weeks, including approximately 2000 petitions being received by their offices in the days before the Thanksgiving holidays. USCIS also confirmed that the demand for the H-1B1s for Chile and Singapore has been small this year, thereby resulting in some additional numbers being added back to the "general pool". Despite these additional numbers, employers are encouraged to file any new H-1B petition quickly, particularly given the heightened demand for H-1Bs in the last few weeks.

Is the H-1b cap 65,000 or 58,200 ?

With the recent announcement from the USCIS that 56,900 H-1b cases have been counted against the FY 2010 cap, there has been wide speculation about when the cap will actually be reached. Will it be a Hanukkah or Christmas present or will we get to ring in a new year with filings still to be done ? There has also been some recent news reports that state the actual cap is 58,200 due to the set-aside of 6,800 visas for the H-1b1 which are Free Trade Act visas issued to natioanls of Chile and Singapore. Those reports fail to take into consideration that unused numbers from the H-1b1 “spill-over” into the next fiscal year. Consequently, the calculation is actually 65,000 minus 6,800 plus the balance of the 6,800 from the prior fiscal year equals the actual cap. Although the numbers of unused H-1b1 visas has not been disclosed, the information that has been released indicates very light usage of the H-1b1 visa in FY 2009 and estimates are that in excess of 6,000 H-1ba visas remained which brings us right back to where we started i.e. 65,000. Breathe a sigh of relief here but, do not delay as the cap will likely be reached very soon.

USCIS Programs Extended Through 2012

The USCIS announced that through the President's signing of the Department of Homeland Security (DHS) Appropriations Act of 2010 on October 28, 2009, the following USCIS programs have been extended until September 30, 2012:
- E-Verify
- Immigrant Investor (EB-5) Pilot Program
- special immigrant visa category for non-minister religious workers
- date by which J-1 nonimmigrant exchange visitors must obtain status in order to qualify for the "Conrad 30" program.

For more information about each of these contact your HLG attorney or see the USCIS announcement here: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89accbf177225210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

ICE Announces 1000 Audits

WASHINGTON-U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure-alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said Assistant Secretary Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."

The 1,000 businesses served with audit notices this week were selected for inspection as a result of investigative leads and intelligence and because of the business' connection to public safety and national security-for example, privately owned critical infrastructure and key resources. The names and locations of the businesses will not be released at this time due to the ongoing, law enforcement sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. I-9 forms require employers to review and record each individual's identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.

H-1B case to the Supreme Court

Despite losing in two lower courts, a group of tech workers are bringing their case to the US Supreme Court asking for a reverse in the federal decision that extended foreign students visas from one year to 29 months. The Programmers Guild, the American Engineering Association, Inc., the Bright Future Jobs lobbying group, and a number of individuals have brought their case to the Supreme Court asking the court to decide "whether American science, technology, engineering and mathematics workers can challenge changes to U.S. Department of Homeland Security regulations, which allow aliens in those fields to work in the United States for an extended period of time after graduation as 'foreign students.'" The group is basically challenging the passing of the STEM Optional Practical Training (OPT) extension provision passed in 2008. Both the US District Court in New Jersey and the US Court of Appeals in Philadelphia ruled against the tech workers stating that the workers had no standing to bring the case as they were not directly affected by the decision to extend student's OPT period. In its ruling, the Philadelphia court stated "the plaintiffs have failed to allege facts establishing that their injuries are 'concrete and particularized' or 'actual or imminent' rather than 'conjectureal or hypothetical."
http://www.infoworld.com/d/adventures-in-it/tech-workers-take-h-1b-case-supreme-court-024

International Students benefit US Economy by $17.6 Billion

New data from NAFSA: Association of International Educators states that international students benefit the U.S. economy by spending $17.6 Billion annually. Based on data from the 2008-2009 year, the report shows that students do much more than bring talented ideas to the U.S. The economic impact of hosting foreign scholars is immense!

http://www.nafsa.org/publicpolicy/default.aspx?id=17174

In a similar report, the Institute of International Education reported in it's 2009 Open Doors report that enrollment in American education is at an all time high:

“I am delighted to see the large increase in the number of international students who are choosing to study in the United States,” said Judith A. McHale, Under Secretary of State for Public Diplomacy and Public Affairs. “The all-time high number of international students who studied here in the 2008/09 academic year testifies to the quality and diversity for which American higher education is known around the world. The Department of State actively promotes the benefits of an American education.

IIE also collects data on the top sending countries around the world. Interested in their "Top 10 List"?


Rank
Place of Origin
1
India
2
China
3
South Korea
4
Canada
5
Japan
6
Taiwan
7
Mexico
8
Turkey
9
Vietnam
10
Saudi Arabia

For more information, please visit: http://www.opendoors.iienetwork.org/