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Chris Musillo on Nurse and Allied Health Immigration

USCIS Neufeld Teleconference

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The USCIS held a February 18 teleconference aimed at addressing the myriad of questions and rumors that have surfaced since the publication of the Neufeld Memorandum a few weeks ago. The Neufeld Memo purports to clarify USCIS policy on the legality of H-1B workers who are placed at third-party worksites. Several times on the call USCIS officials reiterated that the Memo is not new law, but merely an explanation of their current interpretation of law.



The attendees would have none of it. Dozens of immigration attorneys, including MU's Chris Musillo spoke on the teleconference. A litany of criticisms was hurled at USCIS. Members of AILA and other industry trade groups also spoke up on the teleconference and condemned the Memo. The criticisms ranged from the surreptitious nature of the development of the Memorandum, to the absence of legal due process, to the unintended consequences in related areas of law, such as DOS immigration officials at airports misapplying this DHS Memorandum.


The loudest disapproval was directed at the underlying law supporting the Memorandum. MU contends - and many other immigration attorneys - that the Memorandum is simply not adequately grounded in law. For that reason many called on the USCIS to withdraw the Memorandum.


In the Memorandum, the USCIS found that existing law does not define "employer-employee" relationship. But this is wrong. Existing law does define an "employer-employee" relationship at 8 CFR 214.2(h)(4)(ii). An "employer" is one who may "hire, pay, fire, supervise, or otherwise control the work of any such employee". The Neufeld Memorandum pays lip-service to these five factors and attempts to distinguish the "right to control" characteristic as a superior characteristic.


MU recently has had several H-1B's approved in spite of the Memorandum. That having been said, MU recently has seen a new "stock" RFE on a few of our client's cases. At this point, it is unclear how USCIS officials will analyze H-1B third-party worksites in light of this new "stock" RFE and the Memorandum.


On the teleconference, USCIS announced that there would be a second teleconference. The date of the teleconference is not set at this time, but it is expected that the call will take place in early March.


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Comments

  1. Adi's Avatar
    Hi Chris,

    What are the chances of CIR now under current circumstances?

    Thanks,
    Adi
  2. jem's Avatar
    Hi Chris,

    Do you think this memo in any way also affects I-140 applications by staffing agencies? Have your clients received rfe's as well on their I-140 applications?

    Thanks.
  3. Sagar/Jack's Avatar
    Hummm..CIR..? Where is the time to consider CIR..?? Once they finish on HC bill, then only they consider CIR. Tomorrow, they will decide either pass HC via reconcilation or go for a extended talk with republican etc....again weeks and weeks bla bla bla....then only they can talk on CIR..By the time, it will be Nov elcetion...ha..ha..Nothing this year, mate...nothing..
    If HC passed, then, they have to consider a single bill for nurses...that's the only easy way...Don't rely on CIR..
    My two cents..
  4. Chris Musillo's Avatar
    @ Adi- I would put the chances at low unfortunately.
  5. Chris Musillo's Avatar
    @Jem - Great question. On the call, the USCIS specifically said that this Memo ought to be limited to H-1Bs. That having been said, I have talked to collegues and they have seen the Memo applied to I-140s. Personally MU has not yet seen any I-140s implicated by this Memo, however.
  6. Adi's Avatar
    "If HC passed, then, they have to consider a single bill for nurses..."
    Isn't CIR (hispanic caucus) the only problem holding Nursing bill to ransom?
  7. Sagar/Jack's Avatar
    @Audi-
    CIR is not going to happen this year...They may consider it for a debate but it will be killed eventually...
    Because HC bill create lots of health care jobs, for us, Nurses, a single bill will be more benefitial...
    Its just my view..
    Also, I think, If CIR dead, i don't think hispanic cacaus will block any immigration related bill. But, right now, technically, CIR is behind the curtain and not dead...
  8. Sagar/Jack's Avatar
    They have easily passed jobs bill...A good sign for HC...but will they..?
    http://www.nytimes.com/2010/02/25/us/politics/25jobs.html?partner=rss&emc=rss
  9. rajani's Avatar
    Hi Chris, If the chances for passing CIR is very low, do you see any chance of getting the Nurse Bill getting passed in 2010 or 2011. Almost 25% of RNs whose I 140 petitions are approved now will not be able to come to USA since their visa screen has expired. They can renew it only once they clear IELTS and apply to ICHP for renewal. None of us interested to pay for IELTS and Visa Screen unless we are sure of some bill getting passed. Every month about 200 visa screen certificates expired and ICHP/CGFNS is aware that the RN are not renewing the certificates especially in view of their recent fee increase coupled with IELTS intrdoducing a speaking band score of 6.5 Even those who got 7 in speaking earlier are now getting 6.5 Situation is becoming worse and worse. By the time the bill get passed, the Nurses will have to undergo all formalities again.
  10. Chris Musillo's Avatar
    @Rajani- I only wish that I had a good answer. I do not think CIR will pass in 2010. After 2010 is entirely dependent on the election in November 2010. I would be surprised if any nurse stand-alone bill is passed in 2010.

    The 2 bright lights are: (1) legislation is always a long-shot; and (2) if there is a lame-duck session in December, anything can happen.
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