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Chris Musillo on Nurse and Allied Health Immigration

A BETTER PHASE-IN PLAN FOR HR3012

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by Chris Musillo


As we mentioned in an earlier blog post this week, the viability of HR3012 hangs in the balance. Congress will work until August 4 and then take a month off. The legislative calendar has some openings in September, although many Senators and Representatives focus will be on their own re-election campaigns and supporting other's re-election efforts. The close Presidential campaign also means that much political momentum will be drawn away from immigration legislation and toward President Obama and challenger Mitt Romney.


Several comments to this blog have raised the very fair question of why Congress chose to pinch immigrant visa numbers away from the Rest of World in order to equalize the Employment Based categories. It's a very fair point that has been made. HR 3012's effect will be to delay EB2 and EB3 visa numbers for non-Indian and non-Chinese natives. It is unclear at this time what it means for Philippine natives, although the best guess is that Philippine EB3 will also be hurt by HR3012's enactment.


MU Law's position is that this is unfair and that solving one unfair policy (retrogression dates determined by birth) by creating another unfair policy (delaying approval for scores of applicants who have played by the rules) is wrong. The correct thing to do would be for Congress to guarantee reasonable processing times for all EB-2 and EB-3 visa applicants who presently have approved I-140s.


One way to do this would be to create a better phase-in plan than the current three year phase-in plan. HR'3012's three year phase-in gradually raises the per-country caps until all EB applications are in the same retrogression schedule. The math on the phase-in is complex. It is nearly impossible to guess where the EB-3 priority dates will eventually settle if HR 3012 becomes law. Adding to the complexity is the real-world fact that no-one, including the Department of State, knows how many of those pending EB-3 applications are still viable.


A better plan would guarantee all EB-2 and EB-3 applicants that their retrogression would not increase as a result of HR 3012. So for instance if a ROW EB-3 has a priority date of September 2008 on the day that HR3012 becomes law, and the ROW Visa Bulletin is September 2006, then that applicant would be guaranteed a green card two years from the date of the enactment of HR3012. This plan would be simple to institute and could be crafted in a way as to not increase visa numbers.


Unfortunately, Congress has chosen to use the three year phase-in, which is more complex and ultimately serves neither constituency. It's neither fair, nor easily applied.


Read the full 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.

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Comments

  1. WorldWideEB3's Avatar
    The "three year" phase in is retroactive to October 2011 in the original bill. This means that if HR3012 were to pass today, all the non oversubscribed countries of the world would immediately go U in EB3. Then for the next two fiscal years starting in October of this year, the non oversubscribed countries (yes, all 180+ of them, representing over 4.5 billion people) would get only 10% of the visas reserved, then get zero visas after the second year until the backlog is cleared!

    Honestly I'm shocked that healthcare companies that sponsor nurses from the Philippines for CP processing (since they don't qualify for H-1 visas) have been asleep at the switch as HR3012 creeps towards passage.

    Thanks for acknowledging this problem. The question is what can be done to make the transition less devastating to immigrants from around the world who would be affected by this bill.
  2. Khalidiq's Avatar
    Chris,

    I am agree with most of what you have said. But I have some questions with some calculations.

    1. Even if HR3012 has been passed today; the dates for EB3 ROW will not go unavailable immediately as another comment says. Here is why. Currently I 485 pending inventory for India is 49800 till July 2007 and there are not many CP cases for India. If EB3 India gets 85% of 85% i.e. 26500 visas, in next two years they can be very well catch up at EB3 ROW. Same will with China. Hence, third year 0%, from another comment, will not arise as everyone will be at around 2007 date somewhere.

    2. Rules changing has always been done by either DOL and USCIS. You are saying "So for instance if a ROW EB-3 has a priority date of September 2008 on the day that HR3012 becomes law, and the ROW Visa Bulletin is September 2006, then that applicant would be guaranteed a green card two years from the date of the enactment of HR3012". When EB3 India people applied in 2002-2005; EB3 priority dates were current. Did they know at that time, that they need to wait for 10 more years? Why nobody has said in last 10 years about them what you are saying for ROWers in fear of retrogression/slow moving dates for 2-3 years? Why din't anybody said anything when DOL launched PERM and send all those applications before that to backlog centers?

    Also when spillover rules changed in 2008 from EB2ROW-EB3ROW to EB2ROW-EB2IC, I haven;t heard anything from these folks crying for Philippine Nurses; how their increase period will wait. Looks like everybody had waked up suddenly from deep sleep and started to ask questions. Why all these questions were not asked in last 3-4 years? CP dates were still backlogged for Philippine nurses for 5-6 years that time. So employers still had to wait same years as now. Answer is simple. People who are crying for EB3 Philippine are just worried about their cases not nurses. It's just an excuse to show that they care for them. Employers for Nurses were still waiting for 6 years to get a nurse here is US.

    3. EB3 ROW people could ask/raise these questions by doing some study and determine impact on their cause. I know it is hard since many factors are unknown but still you can make a fair guestimate from pending I-485 inventories and CP/AOS case ratio in last 5 years. This could have been easily done in period of November 2011 to July 2012. But ROW people were so convinced that HR3012 is dead due to Sen. Grassley's hold nobody cared for that. As he lifted his hold now they woke up and crying on your blog for CP3 cases for Philippines Nurses? Since when you started this blog, how many questions were asked about them by others with just pure sympathy before you wrote last post about Sen. Grassley? This just shows Height for hypocrisy.

    Yes, I admit, everybody on internet forums is just being selfish and crying for him/herself and to hide it everybody is trying to come up with fairness definition. Be that an Indian/Chinese/ROWer.

    How to implement HR3012; my thinking is try to make priority dates equal ASAP. In that way at least everyone will know going forward, how much they need to wait for and it will be same for every country. When you entered into system nobody gave you fixed waiting time and it applies to every country. Rules are not there forever. They can be changed and have been changed before. As far as employment based immigration goes, FIFO is the best thing. If you look at Australia, Canada employment based immigration; it counts about 70% of their total immigration and they accept a fixed # of applications per year but without any country quota. I think US should follow that path too.

    My extremely long 2 cents
  3. Paul Wilson's Avatar
    Khalidiq,

    Chris is right. The impact of HR 3012's poor transition will be very severe. Thousands of health-care professionals who rely on CP will be delayed by 5-6 years and their employers won't wait for them. This will affect people who have prepared themselves, getting certifications and board exams, etc. to not be able to come to the US and join their employers in the end.

    All of this will be done to help EB-2 I people (because let's face it.. without extra visas, EB-3 won't get that much relief really) who currently live in the United States, have high-paying jobs, and most of them enjoy EAD/AP but find it very inconvenient and discriminatory to have to wait 1-2 extra years just because the software industry of their own country abused H-1B visas for a long time and contributed to the creation of very long queues.

    On one hand you have people like Philippine nurses, who you will prevent from immigrating and starting their jobs, and on the other hand, a bunch of spoiled, selfish Silicon Valley engineers from India who cry "I want my Greencard! I want it now!!!" and who use all their money and clout to change the law to their advantage (which coincidentally people from the Philippines can't do).

    It's not very difficult to see who has the moral high ground here. HR 3012 without extra visas and without a better transition period has no place and should never become law!
  4. Chris Musillo's Avatar
    Thanks everyone for your comments. To be clear: I favor the elimination of per-country caps, which I think are fundamentally unfair.

    However, I would like to see a phase-in plan that preserves processing times for applicants who are already in the system. This phase-in plan would be a more gradual plan than is currently in HR3012, but would ultimately create a system whereby retrogression discrimination was eliminated. To my knowledge there is no push in Congress/lobbyists to make this change.



  5. WorldWideEB3's Avatar
    There are, of course, lots of armchair quarterbacks who like to speculate about the effects of HR3012 on immigrants from non oversubscribed countries, but here is a reality check from the experts.

    Even the congressional research service was unable to figure out the effects of abruptly lifting the caps. Better research needs to be done. See here for their report:

    http://www.ilw.com/immigrationdaily/news/2012,0227-crs.pdf

    NFAP has tried to come up with concrete numbers, and they are not pretty. From here:

    http://www.nfap.com/pdf/NFAPPolicyBrief.StillWaiting.June2012.pdf

    Relevant points:

    - India EB3 backlog is 210,000 which represents 5 years of EB3 allocation! This will not be cleared up in a snap as some are saying.

    - EB3 wait for all countries including the previously non oversubscribed countries will jump to 12 years!!! Now how many healthcare employers will be willing to wait 12 years for a sponsored nurse to get CP processing (and remember nurses don't qualify for H-1 in most cases)? And 12 years is just the starting point. The CRS believes removal of the caps will spur demand from the heavily oversubscribed nations, meaning the 12 year wait will balloon almost immediately.

    This highlights why piecemeal immigration legislation, especially legislation of a zero sum nature, is REALLY bad. Reform needs to be broad enough to protect all stakeholders, and not just be for the benefit of a single group to the detriment of all others.
  6. khalidiq's Avatar
    Paul Wilson,

    If EB3 India gets 28500 visas for 3 years; how doesn't it get any relief? It's like getting 10 times more visas and once PDs get equal to ROW than everyone has access to 40000 visas. About EB2 just tell your comment to someone in I/C who has PD June 2nd, 2012. With 50000 pending inventory; he will wait till 2015 to become current. Oh yes, ROW EB2 will not understand as they file 140-485 concurrently once Labor is passed. Those "Rich, a bunch of spoiled, selfish Silicon Valley engineers from India" are saying make the wait same for everyone who has same level of qualifications/category.

    About Philippine Nurses at CP, those people are actually in their home country and their routine is set. Imagine your company lays you off while on H1B and you have to go back and start everything again from scratch in you home country and also selling all property here in US if any.

    Oh by the way, I have seen your comments in several different forums (If you are same person under same ID) opposing HR3012. I did not see a single word about Philippine nurses while you were defending country caps. With the comments on Indian IT Engineers you have just shown your true colors.

    To Worldwide EB3;

    I will read the first report in detail over the weekend. About the second report; All ROW friends had rejected that report as it was written by an Indian Professor. Just search on other forums and you will find answers.

    I am a statistics student and I do know a little about statistics and prediction modelling.

    I am absolutely agree with Chris that country caps should not be there and we can do better for phase in period. But the comments like from all Paul Wilson types made me sick as core of their comments is "Indians are trying to screw them"
  7. WorldWideEB3's Avatar
    @Khalidiq

    Honestly I don't care about blog posts from people with vested interests. The problem is no one knows the real numbers. The demand data is incomplete and virtually worthless for figuring out the effects of cap removal.

    So if Filipino nurses are "all set" because they will be stuck in their home country waiting for 12 years or more, maybe Indian tech workers should apply for CP and wait in their home countries. They can be "all set" too.

    This is a health care immigration blog, so let's talk about how HR3012 affects healthcare immigrants. The truth is HR3012 will, for all intents and purposes, stop nurse immigration completely. Again, registered nurses don't qualify for the H-1 visa, and CP processing is their only choice. No employer will wait 12 years or even 10 years to get a nurse from overseas, no matter how bad the shortage. End of story.
  8. Paul Wilson's Avatar
    Halidiq

    I too am against country-caps, but you should realize that the current problem of oversubscribed countries is there for a reason:

    1) Countries like India whose national policy to increase GDP is to train and export millions of engineers regardless of quality, and fraudulent consulting companies who staff project with thousands of them promising them better life in the US and then exploiting them after bringing them here.

    (Take a look at this article if you don't believe me:

    http://online.wsj.com/article/SB10001424052748703515504576142092863219826.html
    )

    And,

    2) The huge amounts of wasted visas due to USCIS's bureaucratic delays.

    One way or another, this problem of visa scarcity and backlogs should be solved first by adding extra visa numbers or eliminating fraudulent applications and people with 3-year degrees/online masters' from the system, and cleaning up the backlogs. Only then can we think about a utopian system based on equality and no country caps.

    HR 3012 in its current form is nothing more than a visa grab perpetrated by people who just got tired of waiting in the queue and who are using their comfortable position of being in the US to lobby to change the law. What is actually even sadder is that they bought into the anti-immigrant idea that no visas can be added and no immigration benefit can be obtained unless there is a sacrificial lamb, and they decided to sacrifice those who don't have a voice and are not represented in the US--the fragmented ROW immigrant community and immigrant nurses and health-care professionals from other countries who rely on the CP process to come to the US.

    This is extremely sad, but it's no wonder that HR 3012 was sponsored by an anti-immigant (Rep. Chaffetz)
  9. betterphaseinplan's Avatar
    A better phase-in plan is to freeze giving Diversity Visas for the next 3-5yrs and allocate those 55,000 visas each year to the EB2 or EB3 applicants stuck in the backlog.

    Also, like Canada Immigration, due to the backlog USCIS should stop accepting AOS and consular processing applications for the next 3 years or until every EB category becomes current again.

    But USCIS will probably not stop accepting applications since they need the application fees. They don't care about the backlog as long as immigrants keep on paying for the filing fees.
  10. WorldWideEB3's Avatar
    @betterphaseinplan,

    Your ideas make way too much sense, so they would never fly in congress. Only zero sum games that create winners and losers will be considered.

    /* Sarcasm off
  11. SAM's Avatar
    What Chris was doing so far? The bill was introduced almost year back. Did it take this much time to find that phase out is unfair? Now what he is going to do in case bill is passed in next week or next month?
  12. pissed off's Avatar
    Swamped by Indians, they do it all over the world. Just look at England, Australia, Canada. Now it's the US turn. Indians are extremely selfish people - me personally, EB3 ROW, if it goes unavailable or gets backlogged, I'm leaving.
  13. lunettes de soleil marque's Avatar



    Kiitos, ett? luotettava yritys antaa selitys. Olen hyvin kest?v? noin, ja halua saada tietoa enemm?n. Jos se on OK, kun t?yt?t extra intensiivinen viisautta, voisitteko ajatuksia lis??m?ll? ylim??r?isi? viesti? hyvin samankaltainen kuin t?m? yksi enemm?n tietoa? Se voisi olla eritt?in hy?dyllist? ja hy?dyllinen minulle ja kollegoilleni.
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