H-1B Filing Season Starts - Unneccessary Problems Plague Employers

Today, immigration attorneys and employers will submit H-1B petitions to the USCIS, probably in excess of the numerical caps. However, the number of H-1B petitions filed will, no doubt, be reduced by the current recession and by the restrictions imposed by law on employers receiving TARP funds.

Unfortunately, a number of issues have arisen recently which will unnecessarily increase the number of H-1B petitions filed, and make the continued employment of needed professionals problematic.

The USCIS has denied cap-exemption to certain institutions recently on the grounds that the word "affiliated" in AC-21 implies that they are owned by the university that they are affiliated with.  This is despite the fact that neither the law, the legislative history nor any regulation imposes a co-ownership requirement.  Because of this new USCIS policy, a number of employers are filing H-1B petitions under the cap to avoid petition denials later in the year on the grounds that they are not cap-exempt.

For example, a non-profit hospital in a medically-underserved area obtained the approval of a physician in H-1B status on a cap-exempt basis because the hospital has an affiliation agreement with a university.  The physician's H-1B status needs to be renewed in the fall of 2009.  Usually, the hospital would wait until the fall and submit an H-1B extension of status for the physician on a cap-exempt basis.  However, because of recent USCIS denials of such petitions, the hospital has no choice but to try to obtain the approval of a cap-subject H-1B extension.

Another new USCIS policy that has some employers worried involves the minimum educational requirements for physical and occupational therapists.  The regulations are clear that these standards are established by the state licensing boards.  Thousands of H-1Bs and I-140s have been approved for licensed therapists with B.S. degrees.  Despite this, the USCIS has recently started to deny H-1Bs and I-140s for such therapists relying on the Labor Department's Occupational Outlook Handbook (OOH).  The three government-authorized healthcare credentialing organizations (CGFNS, FCCPT and NBCOT) have all informed the government that they were erroneously relying on the OOH.  See these letters on our "Allied Health Professionals" page at

http://shusterman.com/toc-ahp.html#2 (Occupational Therapists)

and

http://shusterman.com/toc-ahp.html#5 (Physical Therapists) 

However, employers had to submit and pay filing fees for H-1B petitions for therapists today without any guidance from the USCIS as to whether a state-issued license for a therapist with a B.S. degree in Occupational or Physical Therapy will be sufficient to establish that the therapist meets the minimum educational requirements. 

The failure of the USCIS to follow immigration laws and regulations is having a damaging effect on U.S. employers and patients alike.

Comments

[IMG Physician]

Yes indeed a sad state of affairs. It is sad to see Congress wanting to enact laws to legalize millions of illegal immigrants, but are not bothered about people who play by the rules and have a positive contribution to this country. There is a huge shortage of Physicians in this country, especially in the rural and suburban areas. Many positions go unfilled for years and sometimes never. How do I know this myself? For the last two years, I have been getting the same ads in my email for Primary care physicians unsolicited. I wonder if USCIS knows that they are penalizing their own citizens by denying visas to physicians by " interpreting" rules differently. I am sure they do not care and are under the mistaken belief that they are " helping" the economy by not allowing these " foreign" workers to come to US. Recently when I changed jobs, 3 of my office staff could not find another job and about 200 of my medicaid patients were forced to go to a federal clinic 40 miles away as the other primary care providers in the area were not accepting medicaid patients. But no one listens if we try to convince them that we actually boost the econmy. Infact one of the indicators of growth for a community is the number of new physicians moving into that community.