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Test Healthcare Post
January 19th, 2010PRO-IMMIGRANT SEAT UP FOR ELECTION
January 19th, 2010The 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
January 14th, 2010We 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
January 13th, 2010At 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
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
January 12th, 2010The 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?
December 16th, 2009The 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
December 15th, 2009Today 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
December 11th, 2009The 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
December 10th, 2009The 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
December 4th, 2009The 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.