When the Occupation Requires a License

USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license.  USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.

This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA.  Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license.  For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization.  Teachers have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.

With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that  that they have been granted H-1B status.  At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.

As a condition to approving petitions involving state or local licensure, the worker must demonstrate that he or she has filed an application for the license according to the State or local rules and procedures and provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition.  For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.

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If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us.  My email address is leslie@immigrationsolution.net, telephone is 562 612.3996.  If you’d prefer to request a consultation, you can do so here

When should I start my case?

Immigration Solutions accepts H-1B cap-subject cases well in advance to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers.  Bottom line, cap-subject cases should be started ASAP.

How long does it take to prepare an H-1B Case?

We do not recommend waiting until the last minute because of the various government agencies that are involved in the process.  With good front-end case strategy, our attorneys’ depth of experience and a streamlined case process, the many steps involved in preparing an H-1B, requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary documents.  An approval requires that a case be prepared correctly from the start.  It is often not possible to reverse strategy after the case is filed. Planning ahead is crucial to flush out any issues that need to be overcome.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays with new LCA software.  By understanding the issues involved in the H-1B process, Immigration Solutions takes a proactive approach to assure that the needs of their clients are addressed early.

If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us.  My email address is leslie@immigrationsolution.net, telephone is 562 612.3996.  If you’d prefer to request a consultation, you can do so here

The Job Description and Degree Requirement

The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation?  A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Small to medium-size companies are being asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).  Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty.  It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

If you are not a client of Immigration Solutions, we are available to discuss your H-1B filing needs.  Feel free to contact us.

Yes – it’s the season to start preparing H-1B “cap” filings again for Fiscal Year 2011.

The USCIS FY starts on October 1st each year. Thus, fiscal year 2011 starts on October 1, 2010 and runs through September 30, 2011.  Regulations permit cap subject filings 6 months in advance of the October start date for cases to be received at USCIS on April 1, 2010.

The following are suggestions to help you for the upcoming cap season.  Our suggestions are based on existing law, as well as USCIS guidance and our experience from prior years.

USCIS frequently issues updated guidance with slight procedural variations for each fiscal year. For example, the LCA process changed in July – note it is taking sometimes up to 7 days to obtain an approval.  In case of a denial such as problems with verifying an employer’s EIN# which is quite common unfortunately, obtaining an LCA may take even longer.

Immigration Solutions is accepting H-1B cases for FY2011 at this time.  We have a team of experienced attorneys, case managers and paralegals in our business unit who are currently working on new H-1B cap-subject cases.  The cases will be prepared in advance and will be transmitted for delivery on March 31, 2010, for USCIS filing on April 1^st.  In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H-1B case.

The USCIS has increased scrutiny on all H-1B cases and imposed tougher standards, particularly those filed in the IT consulting industry and for software companies. These new standards also affect healthcare staffing agencies that place workers at 3^rd party jobsites.   The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H-1B cap cases for filing.  For this reason, we recommend that you work with an experienced law firm that specializes in employment-based immigration. Click here to contact us for your new H-1B case now.

NOTE:  Immigration Solutions is sponsoring a free teleconference on February 10^th that will address the tougher standards in the H-1B category.  For more on this and to RSVP, we link to our blog

3rd in a Series: Nurse Practitioners

While working on this series, USCIS notified that the H-1B cap was met on December 21, 2009 for fiscal year 2010.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009 and will use this process to select petitions needed to meet the cap.  USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed for:

1)     Extensions of H-1B’s for the same employer

2)     Changes of employer from one H-1B employer to another

3)     Petitions amending a material change in employment (such as a change in jobsite location)

4)     H-1B employer petitions seeking concurrent H-1B employment; and

5)     Petitions filed by exempt employers. Exempt employers are non-profit organizations that are affiliated with institutions of higher education, nonprofit  research organizations or governmental research organizations.

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What Nurse Positions Qualify and meet the Requisite Requirements for H-1Bs?

Category 1:  The first category of nurses who generally will be approved is the certified advanced practice registered nurse (APRN) category that includes:

·        Clinical nurse specialists (CNS’)
·        Certified registered nurse anesthetist (CRNAs)
·        Certified nurse-midwives (CNMs)
·        Certified nurse practitioners (Nurse Practitioners fall within this   category

Category 2: The second category of nurses who may qualify for the H-1B are those in administrative positions requiring graduate degrees in fields such as nursing or health administration.

Category 3: A final, more subjective group that may receive H-1B approval includes those who have a nursing specialty such as critical care and peri-operative nurses, or who have passed examinations based on clinical experience in school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics, ICU, dialysis and cardiology.

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At an American Academy of Nursing news briefing earlier this year on nurse-managed care and health solutions for our ailing healthcare system, former Health and Human Services Secretary Donna Shalala and others sent a coherent message:

Nurse practitioners (NPs) have developed an infrastructure of health centers and convenient care clinics (such as Minute Clinics) that can help our nation reform a health care delivery system that is currently unable to meet the primary health care needs of its people.  Shalala noted,“NPs are going to be key to health care reform and must be at the health care reform tables. Nurses are part of the solution.  It’s a solution in plain sight.”

Nurse Practitioners (NPs) have provided health-care services to patients for more than 40 years. The nurse practitioner role had its inception in the mid-1960s at the same time that Medicare was introduced, which dramatically increased the need for primary-care providers. In addition to providing many of the same services less expensively such as primary and some acute care, they are qualified to meet the majority of patients’ health-care needs. They promote a comprehensive approach to health care and emphasize the overall health and wellness of their patients.

NPs offer something else that makes them darlings to health reformers: a focus on patient-centered care and preventive medicine. “We seem to be health care’s best-kept secret,” says Jan Towers, health-policy director for the Academy of Nurse Practitioners. Nurse practitioners may have less medical education than full-fledged doctors, but they have far more training in less measurable skills like bedside manner and counseling.

NPs are registered nurses (RNs) who are prepared, through advanced education and clinical training and are granted either a certificate or a master’s degree that is most common today –  this is why they qualify for H-1Bs.

NPs work independently and collaboratively on the health-care team.  Some healthcare analysts and experts see nurse practitioners and Physician Assistants (PAs) as the answer to the growing physician shortage, particularly in primary care.

A TIME Magazine article published this year concerning nurse practitioners indicated that they would perform a key role in healthcare reform:  “Even without reform, experts on the health-care labor force estimate there is currently a 30% shortage in the ranks of primary-care physicians. Fewer than 10% of the 2008 graduating class of medical students opted for a career in primary care, with the rest choosing more lucrative specialties.  That could pose problems if a national health-care bill is enacted.”

After Massachusetts enacted mandates for universal health insurance in 2006, those with new coverage quickly overwhelmed the state’s supply of primary-care doctors, driving up the time patients must wait to get routine appointments. It stands to reason that primary-care doctors could be similarly overwhelmed on a national scale.

Depending on the state in which they practice, nurse practitioners, with advanced training can often treat patients and diagnose ailments as well as prescribe medication. And they can do these things at a lower cost than doctors.  Medicare, for example, reimburses nurse practitioners 85% of what is paid to doctors for the same services.

The new HHS Secretary Kathleen Sebelius recently said that “to make health reform a reality, we need nurses at the forefront of the effort.” Let us continue to hope that the Obama administration take the abundant opportunities that already exist to make such statements more than just rhetoric.

The Library of Congress’ Thomas database has a hyperlinked version of the new CIR SAP Bill that is better to use if you’re just trying to focus on any one section.  The important sections for Healthcare Immigration are Chapter I, Title III.

Sec. 301 – Recaptures past unused visa numbers
Sec. 302 – Exempts LPR dependents from the IV quotas.
Sec. 303 – Slightly increases the per country quotas.
Sec. 320 – Provides IV cap exemptions for certain STEM and shortage occupations
Sec. 321 – Allows those with pending IVs to file Adjustment of Status even if their priority date is not current.

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For your future reference here is a link to the O*NET for nurse positions that would quality for H-1Bs.  The O*NET is the Occupation Information Network sponsored by the Department of Labor and was released to replace the Dictionary of Occupational Titles.

If you missed our first 2 articles in this series, you can view them here:

Advanced Practice Nurses

Clinical Nurse Specialists

Again, remember — for citizens of Canada and Mexico, the TN classification is available under NAFTA as an alternative to the H-1B visa for RNs and other professions listed on the NAFTA List of Occupations.

Read more:

Time Magazine:  “If Healthcare Reform Passes, Nurse Practitioners Could be Key”

NurseZone:  Spotlight on Nurse Practitioners

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What can Immigration Solutions do for you?

We can consult with you to determine that the nature of the position and the beneficiary’s background are appropriate for an H-1B or any other nonimmigrant visa classification, and suggest alternatives if the initial proposal is not a viable option. We can advise both the employer and prospective employee regarding documentation requirements and legal issues – and successfully file your case with USCIS.  You can contact our office by email – or phone 562 612.3996.

The DOL has designated a centralized Washington, DC location to handle Prevailing Wage Requests (PWRs) for all case types as of January 1, 2010.

PWRs for PERM, H-1Bs, H-1B1s (Chile and Singapore), H-2Bs and E-3s (for Australians) will be prepared on the PWR form that DOL rolled out for the H-2B program, form ETA-9141.  DOL has not yet offered an electronic version of this form so there isn’t any way to submit it online, neither are they accepting faxes.  If you subscribe to an immigration forms program, such as INSZoom, you can access a fillable version there.

All PWRs are to be mailed to the OFLC’s NPWHC in Washington, DC. at:  US Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn:  PWD Requests, 1341 G Street, NW, Suite 201, Washington, DC  20005-3142.

Here is AILA’s advance copy of the Federal Register Posting.

We’ll see how this centralized process goes.  To roll out a new system without electronic submission doesn’t make much sense.  Let’s keep our fingers crossed.

The Department of Labor will be centralizingi prevailing wage processing.  The agency is scheduled to open its prevailing wage center in Washington, DC to begin centralized processing of PERM, H-1B, H-1B1 and E-3 NIV programs as of January 1, 2010.

Prevailing Wage Requests will be submitted to the National Center rather than to the State Workforce Agencies (SWAs).

The processing times from state to state vary widely at the present time and the determinations are not always consistent.  We’re not sure what to expect with the new program.  At the onset there will probably be longer processing  times, though DOL is assuring that this should result in more consistent prevailing wage determinations over time.

It has been reported that some 20,000 more unannounced employer site visits will be taking place over the next few months by FDNS, but this time it will be to employers who have filed H-1B extensions to determine if there is ongoing compliance by the employer.

It’s been asked, do they have the legal right to do this – just show up and demand to speak with a company’s representative or executive officer?  Yes, they do, although it hasn’t been acted upon to the extent we are now observing until your $500 Fraud Detection and Prevention government filing fee created the revenue to employ some 6,500 FDNS agents.  Up until now, USCIS or DOL agents have always been in a position to do onsite employer visits when they thought necessary – but it’s been rarely acted upon.  Presently, you can add ICE and FDNS to this group – because we’re in a hunt ‘em down, enforcement climate – and it’s the employers who are being targeted.

So, how does an employer handle this?  We don’t recommend that you wait to ask this question and to get your documentation organized when the agent comes knocking.  This is serious business now, and they are not just targeting the small to medium-size employer or the employer who has financial issues and can’t respond to requests to prove the ability to pay the offered wage to the employee.

Therefore, it is recommended that you discuss this with your immigration counsel now.  If you don’t have a representative, we are available to walk you through a program that will not only assist you in organizing your Public Access information and files, but we will give you the tools to prepare the company representative that will handle the agent site visit and to prepare them for the questions that will be asked, what documentation should be organized now and beeasily accessible to present to the agent when requested – and overall, how to successfully respond to a government site visit at your place of employment.

We link to this document:

http://www.docstoc.com/docs/7499686/AILA-Open-Forum—Dept-of-Labor

This week several organizations will launch a campaign to Reform Immigratin FOR America in cities across the country – from LA to Miami. Today a large coalition of allies from business to community groups, will officially kick off this campaign in Washington, DC.  We link to the Notice from the American Immigration Lawyers Association (AILA):

http://www.docstoc.com/docs/6764009/AILA