Hammond Law Firm on Nurse Immigration

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For the latest posts by Chris Musillo see here.

May Day

Today is May Day which is traditionally a day that working immigrants in this country exercise their right to freely gather. Rallies may be held across the country in support of Comprehensive Immigration Reform.

While CIR is being bandied about Washington DC, readers of this Blog are focused on more targeted legislation: retrogression relief for Schedule A workers – Registered Nurses and Physical Therapists. No matter what happens in the interim, CIR is going to be pushed by President Obama and is going to have significant consequences for employment based immigration.

No legislation gets approved in this country without significant constituent action. For May Day, I ask that you contact your local Representative and two Senators and explain to them that the US nursing shortage is a short and long-term problem and that international workers must be a part of the solution. This will help lay the groundwork for specific Schedule A legislative initiatives that will be introduced in the near future as well as the eventual introduction of CIR.

-Chris Musillo

What the lack of H-1B filings really means

The USCIS’ recently updated its regular cap FY 2009 H-1B cap count. The update of 44,000 accepted petitions, up from 42,000 in the first announcement, means a run rate of about 1,000 petitions per week. At this rate it may be five or six months until the H-1B cap is reached.

In prior years we have seen more than twice as many H-1B cases accepted as slots were available. These numbers provide compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers salaries. That argument just doesn’t jibe with what is actually happening.

If H-1B visa labor was being used primarily to lower US workers salaries, the H-1B filing numbers wouldn’t be impacted to any meaningful degree. Why? Because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less. This logic is straightforward and convincing.

Yet, this year we’ve seen a dramatic downtick in H-1B visas filed in industries like Information Technology and Finance. Meanwhile industries with continued staffing shortages, such as healthcare and teaching, continued to file H-1B Petitions. If the H-1B program was being used to lower salaries, why aren’t the IT and financial industries continuing to file H-1B petitions? Are these industries not interested in cutting costs?

It bears worth repeating: if the H-1B program is used to reduce US workers salaries, why haven’t the H-1B Petition numbers continued in industries where every dollar is increasingly important?

In point of fact, the H-1B program is largely used to supplement worker supply shortages and attract the international superstars to the US. This isn’t to say that there aren’t the occasional bad actors who abuse the system. But the relative paucity of H-1B enforcement actions calls into serious question that there is any large-scale fraud inherent in the system. Particularly noteworthy is the complete lack of any arrests or prosecutions in the wake of a well-publicized September 2008 DHS report on H-1B Benefit Fraud.

Critics of the H-1B system fail to acknowledge just how well the system actually works. In robust times, the H-1B system allows growing companies to attract more workers from overseas when they can't fill those jobs with US workers. In down times, when jobs are few, the market does what it is supposed to do and fewer H-1B job offers are made.

If Congress really wants to reform the H-1B process, it ought to eliminate the arbitrary quota and just let the market sort out the numbers question. Congress also ought to give non-bachelor degree occupations with well-documented staffing shortages, such as nursing, access to the H-1B program.

-Chris Musillo

H-1 Cap Update

The USCIS has announced that it has received 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap, as of April 20. The USCIS continues to accept regular cap-subject H-1B cases.

On April 9, the USCIS announced that it had received 42,000 cases, which means that they are only receiving 1,000 cap-subject cases per week. At this rate it could be 5-6 months before the H-1B cap is reached.

The Masters cap has received the full subscription of 20,000 petitions. USCIS continues to accept Masters cases since their experience is that not all accepted cases will be approvable.

The USCIS Cap Count page should update the cap numbers, although it doesn’t look like USCIS has started to update the page as of yet.

Charice!

A friend sent this video of the Philippine sensation, Charice, singing the Star Spangled Banner before the start a Los Angeles Dodgers game. It is one of the most powerful renditions of the US National Anthem that you will ever hear or see. Since so many Philippine nationals visit this blog, and there are a lot of potential immigrants out there who think that America is forgetting about you, I thought that it was important to share. America still needs immigrants and especially healthcare workers. In the next few weeks, I expect that we'll soon see evidence of this.

May VB

The May Visa Bulletin has been released. As expected there is no positive movement. The Bulletin confirms that there will be no positive movement until the next fiscal year, which is the October 2009 Visa Bulletin.

Although the EB3 dates are Unavailable, I-140 petitions may still be filed by companies who wish to petition for Immigrant Workers. The only way for a Beneficiary to get his or her spot in the queue is to have an I-140 filed on their behalf.

With the continued retrogression, the international staffing and recruiting industry is disappearing. Nurse and other allied healthcare workers from around the world are crossing the United States off their list of desired countries. The one hope is that Congress, when presented with legislation to allow international recruiting to be part of the solution, acts on that opportunity.

 

May 2009 VB:

EB1 - all Current

EB2 - all Current, except India (15Feb04) and China (15Feb05)

EB3 - all Unavailable

 

 

H-1B Cap for FY 2010 Has Not Been Reached

For the first time in several years, the H-1B visa cap has not been met on the first day that H-1B visas have been available. All H-1B filings that have been filed and received by April 7, 2009 will be accepted by USCIS. It remains to be seen for how long the H-1B visa cap remains open and available.

When the USCIS declares that the H-1B visa cap is met, all cases receipted on the last day will be subject to a random lottery. Until the USCIS declares that the H-1B visa cap has been met, cap-subject H-1B cases may continue to be filed.

Similarly the H-1B Masters cap has also not been reached.

 

UPDATE: AILA is reporting that USCIS has received about one-half of the 65,000 H-1B visas for the regular cap, but that the Masters cap has nearly been reached.

April MMM

The April MMM has been released. This month's headlines include:

Lofgren: Nursing Shortage Continues
Will The H-1 Cap Be Reached?
Yates Responds to Ombudsman
...and more

ILW.com teleconferences

HLG attorneys will be featured speakers and panelists on two upcoming Healthcare phone conferences.


April 8, 2009
Sherry Neal and Chris Musillo are featured panelists for ILW.com's telephone seminar, Healthcare Immigration for Beginners.
Register

May 7, 2009
Chris Musillo is a featured speaker for ILW.com's telephone seminar, Options For Healthcare Professionals.
Register

Lofgren on H-1s and RNs

April Fools Day is a big day in employment-based immigration. It is the culmination of the “H-1B season.” Companies who have waited all year to hire foreign nationals must rush to get their H-1B visas in the mail and delivered to the USCIS no later than April 7. Conceivably, the H-1B season could extend beyond April 7 if fewer than 65,000 visas are received at USCIS.

The H-1B is one of the more controversial visas in the US immigration scheme. US technology workers often complain that the visa is abused by unscrupulous employers. While there are certainly instances where abuse occurs, neither the USCIS nor the DOL bring many cases against employers, which could lead one to conclude that the complaints are overstated.

Congresswoman Zoe Lofgren is the Chairwoman of the Subcommittee on Citizenship, Refugees, Immigration, and Border Security, and as is the case with one who holds this position, the nation’s most important voice on immigration. In today’s San Jose Mercury News, Rep. Lofgren speaks on the state of the H-1B visa.

"Even in this grim economy, there are some jobs in which we don't have enough people — for example, we still have a nursing shortage," said Rep. Zoe Lofgren. Rep. Lofgren doesn’t note that very few RN positions qualify for H-1B visas.

Rep. Lofgren’s long-standing goal has been to push a comprehensive immigration bill that attempts to solve many of the US’ immigration problems. She doesn’t think that piecemeal legislation is the best way to legislate on the issue.

The problem with this approach is, of course, that the nursing shortage is here today. For three years niche occupations and employers who have lobbied Congress have been told to wait for Comprehensive Immigration Reform. By the time that Congress is able to get around to passing a comprehensive immigration policy, my hunch is that the legislation will solve last decade’s problem, not the problem that the country needs solving at that date.

Ms. Lofgren should recognize that the needs are today’s problems, not tomorrow's. She also ought to recognize that there is little likelihood for comprehensive immigration reform; there are too many interested agendas and tempers run too hot when immigration is discussed. The American public needs healthcare workers and this fact calls for targeted niche immigration reform. Holding out for CIR is a fools’ game.