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Chris Musillo on Nurse and Allied Health Immigration



    by , 11-07-2016 at 09:43 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    On Tuesday US voters will go to the polls to elect 435 House of Reprehensive members, 34 Senators, and of course, a new US President and Vice President. The biennial election will set the stage for the next two years of federal legislation. Pundits are calling it the most important election of our lifetime and are predicting massive changes in immigration law.

    If Hilary Clinton is elected, she promises to make immigration a top priority. She is calling for Comprehensive Immigration Reform including a pathway to legalization for millions of undocumented and illegal foreign nationals. She expects to have legislation proposed within her first 100 days.

    If Donald Trump is elected, he is calling for a wall along the US-Mexican border and greatly increased regulation in all corners of immigration. His changes to the law will begin immediately.

    It seems unlikely to MU Law that any of this happen immediately. It also seems unlikely that any immigration changes will be incremental, not dramatic.

    Immigration laws are implemented in two basic ways: legislatively and administratively. Legislative laws must pass both branches of Congress, the House and the Senate. The betting markets have concluded that the most likely outcome for this week’s election is that Hillary Clinton will win the presidency, the Democratic Party will have a tiny majority in the Senate, and the House will remain in significant Republican control. Betting markets have proven to be a more reliable predictor of electoral outcomes than polls or pundits.

    That outcome is a recipe for gridlock. Even if Hillary Clinton wants to push for a massive legalization program, she will need to convince at least 50% of the House membership to go along with the plan. It is unlikely that a Republican- controlled House will want any part of a Clinton-inspired immigration bill. They will be much more likely to spend their time on more email investigations and Benghazi hearings.

    A President-elect Clinton may be able to make some progress on administrative changes, which is also known as Executive Action. Administrative changes are interpretations of law by the Department of Homeland Security. The President ultimately sets all policy for administrative agencies such as DHS.

    President Obama had some success in this area, such as sanctioning the DACA rules, which allowed undocumented foreign nationals to obtain work authorization if they entered the US as children, provided that they had no other criminal record.

    Through the USCIS, President Obama announced some additional Executive Action in November 2014. He has had mixed success in this area. He was rebuked by the courts for overstepping his administrative authority when he sought to create DAPA, a program that would have extended DACA-like rights to undocumented parents of US citizens and permanent residents. On the other hand, the USCIS has expanded work authorization for certain spouses of H-1B visa holders.

    Which leads to our prediction: Hillary Clinton will win the US Presidency but will not have success passing meaningful immigration legislation. She may be able to make marginal changes to immigration policy through administrative decision-making, which will likely be less-dramatic and newsworthy.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.

    Updated 11-16-2016 at 08:35 AM by CMusillo


    by , 10-28-2016 at 08:28 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    In a recent decision, USCIS demanded FCCPT issue Type 1 Certificates ONLY to graduates of university programs whose diploma reads “Master’s Degree” and who have at least 202.1 credit hours. Any graduate of a program that is equivalent to a US Master’s Degree will no longer be eligible to enter the US and practice Physical Therapy. In 2017, applicants will need a DPT to obtain a Type 1 Certificate.

    Type 1 Certificate renewals will not be subject to this new ruling. Renewal applications do not examine education, but only licensure and verification of English proficiency. PTs with a current Type 1 can renew the Type 1 Certificate without being subject to the new standard. However, if the Type 1 expires, the PT will have to make a new application and will be subject to the new standard.

    Type 1 Certificates are valid for five years from the date of issue. MU strongly advises PTs to timely renew their Type 1 Certification so that they can continue to maintain their immigration status and their ability to work in the US.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.

    by , 10-26-2016 at 10:00 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Maria Schneider

    Earlier this year in May the USCIS published a proposed rule to increase fees. On October 24, 2016, the final rule was published adjusting the fees for most immigration applications and petitions. The new fees will go into effect on December 23, 2016.

    The new fees are:

    Current Fee
    New Fee

    A full list of all of the new fees can be found on the USCIS website.

    The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The fee increase is the first in the last six years and. The fees will go up an average of 21 percent and will recover the costs associated with fraud detection and prevention and national security.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.

    by , 10-20-2016 at 07:38 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    When an H-1B employee separates employment from an H-1B employer, the H-1B employer often seeks a Settlement and Release. The employer’s goal is to put the matter to rest. It does not want the H1-B employer to file a private lawsuit seeking back wages or to file a Complaint with the Department of Labor.

    H-1B employers also often are seeking to collect on liquidated damage provisions, which allow the employer to recoup the costs associated with the separation of the employment relationship. Costs such as reputational loss, replacement costs, and travel costs are usually recoverable under the H-1B rules

    H-1B employer and employees often seek a “global settlement,” which settles all outstanding claims between the parties.

    A 2015 Department of Labor decision, Gupta v. Headstrong, 2014-LCA-00008, confirms the appropriateness and enforceability of these settlement agreements. In Gupta, the Administrative Law Judge held that the Settlement and Release extinguish all of the h-1B employee’s claims to back wages. Notably in Gupta, the two parties were the employer and the employee. The DOL was not a party to that lawsuit.

    It remains an open question whether an H-1B employer can legally prevent an employee from filing a Complaint with DOL following a proper Settlement and Release. The DOL does not want to see any hindrance on an employee’s ability to file a Complaint to their agency.

    Nevertheless, an H-1B employee who fairly settles a back wage claim and who subsequently or concurrently files a complaint with the DOL solely on a back wage claim (and who continues to assert to the Department that the back wage claim remains unsettled following a settlement on those same claims) may be committing fraud before a government agency.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us onFacebook and follow us on Twitter.

    by , 10-18-2016 at 09:03 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association. Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month. This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog. Here are some highlights:

    Philippine EB3 – Charlie again offered his most optimistic predictions for this category. He expects that this category will move several months at a time because demand from those with priority dates from 2011-12 is lower than originally thought. This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.

    India EB2 and EB3 – Charlie expects that EB2 will move into November 2008 by March of 2017. While he did not comment on EB3 at this time, last month he said that the EB3 category will move only one week per Bulletin.

    Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future. It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.

    China EB-2 and EB-3 - These categories will continue to see-saw. The DOS is now seeing the EB-3 category demand pick up because of EB-3 "downgrades" from EB-2.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
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