Healthcare Blog

Later today or tomorrow, the USCIS is going to formally release this Memorandum. (UPDATE: It has been posted). An advance copy was sent to us last night by the DHS’ lawyer in our lawsuit. The Memorandum says exactly what we hoped it would: if a PT/OT (or any healthcare worker) holds a valid unrestricted license, then the USCIS adjudicating officer should not look past the license and “the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation.”

The Memorandum also clarifies what happens if the worker is not in possession of a state license. The USCIS adjudicating officer must first determine the state requirements. Then if the only thing prohibiting the worker from obtaining the license is a SSN or valid immigration status and/or being physically present in the US, then the USCIS should approve the case for one years’ time.

We knew the law was on our side and so it is good to see the USCIS make the proper determination. All cap-subject H-1 cases should be approved, as we’d hoped when we started this.

The Bill will be referred to the Committee on the Judiciary. That Committee may refer it to subcommittee(s). This process is at the complete discretion of the leaders of that committee.

The Masters cap has received the full subscription of 20,000 petitions. USCIS continues to accept Masters cases since their experience is that not all accepted cases will be approvable. As students graduate from university in late May and June, it is expected that there will be an uptick in H-1B usage. The degree of the uptick is unknown at this point. If the uptick is smaller than expected, there is a chance that the H-1B cap could remain open all summer and maybe even into the fall. On the other hand, the economy does show some flares of stability and so H-1B usage by May/June graduates could be notable.

For the healthcare industry, the H-1B remains an option to fill employment gaps in occupational shortages. As a general rule if the position requires a Bachelors degree for licensure, then the position is appropriate for an H-1B visa. Of course, the proposed worker must hold the requisite degree.

Physical Therapists and Occupational Therapists remain viable for H-1B visas. Cases filed at the Vermont Service Center are being approved as they should be. However inconsistent results out of the California Service Center continue to frustrate employers.

USCIS Chief of Service Center Operations has recently confirmed that “USCIS does not currently have a policy that employers filing H-1b petitions for physical and occupational therapists must require the minimum of a Masters Degree for such positions to qualify as specialty occupations.” This pronouncement was made in early May, and so it remains to be seen whether or not the California Service Center will adhere to the statement from their superiors in Washington D.C.

Some registered nursing positions are appropriate for H-1B visas as well. In broad strokes, the H-1B is appropriate for RN positions if either:

1. The hospital is offering the nurse a position as a Clinical nurse specialist (CNS), Certified registered nurse anesthetist (CRNA), Certified nurse-midwife (CNM), or a Certified nurse practitioner (APRN-certified) Critical care and she holds the certification;

2. The nurse will be working in an Administrative position ordinarily associated with a Bachelors degree, such as Charge Nurse or Nurse Manager;

3. The nurse will be working in one of these specialties: peri-operative, school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics.

The hospital must attest that these roles are only offered to those with Bachelors degrees.

-Chris Musillo

May 2009 Headlines:
H-1B Cap Update
What the Lack of H-1B Filings Really Means

While CIR is being bandied about Washington DC, readers of this Blog are focused on more targeted legislation: retrogression relief for Schedule A workers – Registered Nurses and Physical Therapists. No matter what happens in the interim, CIR is going to be pushed by President Obama and is going to have significant consequences for employment based immigration.

No legislation gets approved in this country without significant constituent action. For May Day, I ask that you contact your local Representative and two Senators and explain to them that the US nursing shortage is a short and long-term problem and that international workers must be a part of the solution. This will help lay the groundwork for specific Schedule A legislative initiatives that will be introduced in the near future as well as the eventual introduction of CIR.

-Chris Musillo