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Chris Musillo on Nurse and Allied Health Immigration

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  1. EXECUTIVE ACTION OR ALL TALK AND NO ACTION?

    by , 11-06-2014 at 10:02 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    President Obama showed no indication that he would back down from a pledge to take Executive Action on immigration despite the Republican party’s big wins in Tuesday’s elections. He promised that he would take whatever lawful action he could if the Congress does not pass meaningful immigration legislation during the November-December lame duck period.

    However, he gave no details about whether the Executive Action would be limited to legalization of the undocumented or a broader action that might liberalize employment-based visa classes such as H-1Bs and employment-based green cards. A list of Executive Action options includes both options.

    Meanwhile the Tea Party republicans threatened to take legal action if the President does anything on immigration. Republicans attempts at filing a law suit against President Obama seems to be riddled with problems. Politico has reported that two different law firms have started and then declined to work on the Republican’s law suit in the last two months.

    The longer that the President dawdles on the Executive Action pledge, the more he feeds the meme that his Presidency is one of all talk and no action.

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  2. FEDERAL COURT CONFIRMS GREATER MISSOURI H-1B DECISION

    by , 11-04-2014 at 09:38 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Greater Missouri H-1B case has been winding its way through the court system since 2006. The key facts are that an aggrieved H-1B holder filed a Complaint with the Department of Labor alleging a multitude of H-1B violations. The Department of Labor’s Administrative Review Board ultimately issued a Decision in January 2014. The ARB decision is one of the best written and comprehensive legal discussions of an H-1B employer’s salary obligations that a practitioner will ever find.

    One of the key holdings concerns the statute of limitations for an employer’s H-1B violations. The ARB found that the DOL does not need to limit its investigation to the single complaining H-1B employee. The DOL may expand its investigation to all H-1B employees; however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.” (Page 16, in the above-linked decision).

    The ARB’s decision contained a dissent by Deputy Chief Administrate Appeals Judge E. Cooper Brown. Judge Brown opined that the DOL’s investigative authority should be limited to the complaining H-1B employee. If Judge Brown's opinion had held court it would have significantly changed long-standing DOL investigative practice.

    The plaintiff, Greater Missouri, sought federal review of the ARB decision hoping to convince the federal court that Judge Brown’s dissent was the proper reading of law. Last week, the federal court denied the Greater Missouri petition, probably ending the eight and a half year saga.

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us onFacebook and follow us on Twitter.
  3. PRESIDENT OBAMA COULD EXPAND H-1B AND DOUBLE GREEN CARDS WITHIN THE NEXT TWO MONTHS

    by , 10-28-2014 at 04:41 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    This November or December the President may expand the H-1B rules and double the number of employment-based green cards, through Executive Action. Either would be welcome to an American industry that cannot find US workers in low supply occupations such as healthcare and information technology. The Executive Action will happen between the November 4, 2014 and January 3, 2015.

    Earlier this month the President hinted that he will use Executive Action to liberalize the H-1B program. One method may be to finally enact rules that extend work authorization to spouses of H-1B workers.

    Pundits have also said that the President could effectively double the number of employment-based green cards by changing the way that employment-based green card are counted. Doubling the number of employment-based green cards would make most employment-based green card categories current, eliminating retrogression.

    The Executive Action doctrine allows Presidents to implement changes to the law, as long as those changes are interpretations of established law and not the creation of new law. There is a fine line between an interpretation and the creation of law.

    The President controversially took Executive Action in June 2012 when he issued the Deferred Action for Childhood Arrivals (DACA). DACA allows certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal.

    The President originally planned to use Executive Action this summer in other areas of immigration law. He has postponed those plans until after Election Day in order to appease Democrats in tough districts.

    It is expected that the House of Representatives will remain firmly in control of the Republicans. The Senate, which is presently in control of the Democrats, will almost surely flip to Republican control. This will give the Republicans control of both houses of Congress when the new Congress starts on January 3, 2015. For this reason, the President is expected to act before the new Congress is sworn into office.

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
  4. USCIS UNHELPFUL ON EB-2s FOR PHYSICAL THERAPISTS

    by , 10-23-2014 at 01:28 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The October 9, 2014 USCIS Headquarters Question and Answer session with AILA included a lengthy discussion on the issue of EB-2s for Physical Therapists. The discussion was unhelpful and did nothing to make progress son this issue.

    This issue is that the USCIS refuses to acknowledge that the five year, 150+ credits Philippine degree is equal to a US Master’s Degree in spite of incredible evidence. The USCIS’ refusal to do so means that Philippine Physical Therapists must file for an EB-3. We have blogged on this topic in great detail.

    This recent USCIS Q&A shows the USCIS’ obtuseness on the issue. Instead of articulating a common standard, the USCIS says,

    Rather than make a blanket statement regarding the merits of degrees evaluated by the FCCPT to be the equivalent of a first professional degree in physical therapy in the United States, USCIS will analyze the educational credentials of foreign workers practicing physical therapy on a case by case basis with due consideration being given to all submitted materials as well as to other credible resource material.

    “Case by case basis” is legal code for “we have no standard.” It simply is not that difficult analysis.

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us onTwitter.
  5. VISA BULLETIN PROJECTIONS FOR THE NEXT FEW MONTHS

    by , 10-22-2014 at 08:41 AM (Chris Musillo on Nurse and Allied Health Immigration)

    by Chris Musillo


    AILA has again recently dialoged with the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin. MU Law has spoken with Mr. Oppenheim several times in the past and have always found that his projections are well thought out and very accurate.

    Here are his projections based on his recent conversation with AILA:

    EB-2 India
    The November 2014 Visa Bulletin retrogressed India EB-2 to February 2005, which was 4 years worse than the October 2014 Visa Bulletin. Unfortunately, the India EB-2 date is expected to stay in 2005 for the foreseeable future.

    EB-3 India

    This category should see continued slow movement of about one or two weeks for every Visa Bulletin.

    EB-3 Philippines
    The EB-3 Philippine’s date is expected to remain the same as the Worldwide EB-3 date for the next several months. These dates will remain the same unless the demand for the Philippines EB-3 spikes in future months.

    EB-2 China
    This category should progress three to five weeks for every monthly Visa Bulletin.

    EB-3 China

    EB-3 China should see rapid promotion of dates in the forthcoming months.


    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com. You can also visit us on Facebook and follow us onTwitter.
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