As of January 12, 2009, all nationals and citizens of Visa Waiver Program countries will be required by law to obtain a travel authorization prior to initiating travel to the United States under the VWP. You can access this authorization online through the Electronic System for Travel Authorization (ESTA), which is a free Internet application administered by Homeland Security (DHS). You can access the free application at 

https://esta.cbp.dhs.gov

For more information on the ESTA advisory statement:
Read this press release from Homeland Security

The Philippines Overseas Employment Administration is advising all overseas Filipino workers returning to the country for holiday to have their overseas employment certificate (OEC) or their travel exit clearance processed early to avoid the holiday rush.

An administrator, Jennifer Jardin-Manalili, said long lines seem to cause massive delays at the Balik-Manggagawa Processing Center immediately after Christmas and New Year’s Day.

Authorities are suggesting that returning OFWs secure their exit clearance at the Philippine Overseas Labor Office (POLO) nearest to their jobsite, even before their flight to the Philippines, or as soon as they enter the country.

For more information:
Read this press release from the POEA

The U.S. Consular Mission in Mexico has changed requirements for visa applications for Third Country Nationals (TCNs) who are not residents of Mexico. The new requirements are posted on their website @ http://ciudadjuarez.usconsulate.gov/nivtcns.html

Applicants will be allowed to schedule interviews at one of ten posts through Mission Mexico (http://www.usvisa-mexico.com) online or by phone @ 1-900-476-1212. Please remember that appointment numbers are limited; therefore, flexibility in post location by applicants will make appointment scheduling easier.

By Brandon Meyer
Immigration Associate

Bad economic news seems to be everywhere. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and the end of prosperity have all become ubiquitous over the past couple of months. The bottom and the subsequent rebound are nowhere to be seen. Now take a deep breath, exhale, and relax. At the time this column was written, I was on a flight from San Diego to Austin packed with business travelers. Oil and other commodity prices have fallen back in recent months after reaching record highs. There are signs that credit markets are beginning to function again. Insofar as pundits cannot oversell the good times (remember Dow 36,000?), pundits cannot resist the temptation to oversell doom and gloom (remember predictions last summer that oil would reach $500 a barrel?). An October 26, 2008 article in the New York Times entitled “Forecasters Race to Call the Bottom to the Market”, explains this phenomenon in greater detail.

The outcome to recent manifestations of economic instability will hopefully be much more mundane. We will all muddle through somehow, although this may seem hard to reconcile for people under the age of 30 who have never really lived through a period of economic instability. Economic growth may be slow to non-existent for the foreseeable future, but full-scale economic collapse is unlikely.

What impact does this economic uncertainty have on immigration for employers and employees alike? Many employers may contemplate downsizing in order to cut costs or reduce employee work hours (“benching”) or pay. While these strategies may be necessary from a business perspective, employers need to keep in mind the potential impact on their foreign national employees. Employers with E-3 Australian and H-1B employees must ensure that any downward revision of wages received by these employees do not fall below the figure listed on the Labor Condition Application (“LCA”) that was obtained on their behalf. Failure to comply with wage obligations of an LCA could be considered noncompliance by the U.S. Department of Labor and could lead to negative consequences for the company. Employers are also required to offer H-1B employees who have been involuntarily terminated the cost of return transportation to their last place of foreign residence. This requirement does not extend to E-3 or TN workers or to dependents of H-1B employees. It is important to consult your labor or immigration attorney prior to terminating, benching, reducing working hours, or reducing wages for foreign national employees.

Furthermore, health care providers must ensure that offers of permanent employment to immigrant nurses also remain at a level equal to the prevailing wage of the Immigrant Visa petition (“IV”) that was filed on their behalf.

The upside for employers is that if unemployment continues to rise, the opportunities for recruiting highly skilled, highly qualified workers increases. Recruiting top-notch workers now places employers in a good position to capitalize on better times in the future.

Some industries, such as banking and finance, will face tough times for the foreseeable future. Some companies, such as Lehman Brothers, have already, or will disappear in the future. Others, such as Wachovia, will be purchased and subsumed into their new owner’s business. Other industries, such as health care, are more insulated from economic slowdowns, and in fact may be poised for greater growth as Baby Boomers enter their golden years.

Foreign national employees generally feel a greater sense of insecurity during periods of economic uncertainty, as they may believe that their immigrant status makes them more vulnerable to selection for any company downsizing. How companies manage this (mis)perception is critical for maintaining employee morale and retention.

In addition to the LCA and return transportation protections for H-1B employees, there are a number of other protections for foreign national employees. Chief among them are provisions allowing H-1B employees to change employers upon the filing of a new H-1B petition, provided the employee is maintaining H-1B status. Upon termination, H-1B employees generally have ten days to depart the United States. H-1B change of employers provisions are helpful in allowing an H-1B employee to change employers in the wake of corporate downsizing, provided that the H-1B employee is still on the books of the initial company at the time of filing of the H-1B petition by the new employer. The H-1B employee can commence employment with the new company upon proper filing of the new H-1B petition. Please consult your immigration attorney prior to terminating an H-1B employee or hiring a new H-1B employee pursuant to the H-1B change of employer provisions.

An even more important protection for foreign national employees rests in the Adjustment of Status (“AOS”) portability provisions of the American Competitiveness in the 21st Century Act (“AC-21”). A foreign national with an AOS application pending for 180 days or more based on an approved or pending (with the proviso that the petition was ‘approvable when filed’) IV petition on Form I-140, that has not been withdrawn by the petitioning company or otherwise revoked by USCIS, may seek employment with a different employer in a ‘same or similar’ occupation that the I-140 petition was filed. The foreign national should notify USCIS of the change of employer, along with a description of how the new job opportunity is the ‘same or similar’ to the job opportunity described in the I-140 petition. In the absence of governing regulations, there is a lot of grey area and wide divergence of practice for how employers and employees handle AOS portability situations. However, USCIS expects to publish regulations governing AC-21 that purport to address these issues in the near future. Please consult your immigration attorney when encountering employees with possible AC-21 issues.

The next economic boom is always just around the corner. Strong companies will emerge from this period of economic uncertainty stronger and ready to seize upon new opportunities. Employees can also emerge stronger and wiser from the experience.

I will be attending the 21st Annual AILA California Chapters Conference from November 13th through 15th in San Francisco, California. I will report on any developments and other pertinent information that may emerge from this Conference in the December 2008 Immigration Solutions newsletter.

Stay tuned!

By Thomas J. Joy
Attorney at Law

Immigration Solutions has been recently inundated in regard to questions pertaining to cap exempt H-1B employment from its clients and readership. As a result of this, we’ve decided to address your questions with the writing of this article. We trust that you will find it useful and informative.

Are you an employer or staffing company searching for a way to solve the H-1B cap (quota) problem? At the present time, due to quota limitations and more demand than supply, you are restricted to filing in early April for H-1B visas for your critical H-1B professional employees who, if they win an H-1B visa in the lottery, can not start employment until the following October 1st, at the earliest. This unavailability and timing problem makes it very difficult to plan for the employment of H-1B workers.

If the petitioning employer is an institution of higher education or a related or affiliated nonprofit entity or a nonprofit or government research organization, then the H-1B cap does not apply. What is generally not widely known is that the United States Citizenship and Immigration Services (“USCIS”) has interpreted the cap exemption in such a manner that widens the scope of the cap exemption. Specifically, USCIS will allow, subject to certain restrictions, an employer who is not cap exempt to petition for its H-1B employees who will perform their duties at a cap exempt institution. Such employers are known as third party petitioners. The intent of Congress was to ensure that qualifying cap exempt institutions have a continuous supply of H-1B workers without quota limits.

Pursuant to the broader interpretation, the USCIS will allow third party petitioning employers to claim the cap exemption for their H-1B employees if the employees will perform job duties at a qualifying cap exempt institution that directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the institution, namely, higher education or nonprofit or government research. If the petitioning employer is not itself a qualifying cap exempt institution, the burden is on the petitioning employer to establish a logical nexus between the work performed predominately by the employee and the normal, primary or essential work performed by the qualifying institution. Essentially, the third party employer’s employee would be cap exempt if he was performing duties that would or could otherwise be performed by employees of the qualifying cap exempt institution in furtherance of the qualifying institution’s primary mission.

It should be noted that it must still be proven that the job offered is a specialty occupation in order to qualify for an H-1B, i.e., the position requires a minimum of a 4 year baccalaureate degree or the equivalent. This will be an issue for registered nurses since the USCIS takes the stance that the position of registered nurse generally does not require a 4 year baccalaureate degree. Registered nurses in more complex positions may be able to qualify.

In summary, cap exempt status, whether it is by working for a cap exempt employer or for a third party employer at a cap exempt institution, provides the advantage of filing at any time without regard to the quota and affords much more flexibility for planning and staffing purposes.

According to AILA, the USCIS has confirmed the following with the new three-year TN regulation:

• All the TN petitions received before October 16, 2008, will be granted for the requested period or one-year, whichever is less.
• All TN petitions on or after October 16, 2008, will be granted for the period requested, or three years, whichever is less.
• The Canadian Border Patrol has also confirmed that the filing fee for TN border applications, even those requesting a three year period of TN visa status, will remain at $56.

*Please be advised: USCIS cannot grant up to three years if the anticipated length of stay, as stated in the application, is less then that period. Please be sure to review all your filings to ensure that all documents are requesting the three year period.

From AILA InfoNet Doc. No. 08102261 (posted Oct. 22, 2008)

The United States and Immigration Services (USCIS) has increased the maximum period of time a TN professional worker from Canda or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. The final rule changes the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers.

Please remember — with the immigrant visa (“green card”) annual quota currently backlogged thereby resulting in a long waiting list, and H-1B visas generally being unavailable for nurses, the search continues for faster ways for nurses to enter the United States to commence employment in their professions. Fortunately, under the North American Free Trade Agreement (“NAFTA”), nurses and physical therapists who are citizens of Canada and Mexico have a possible solution. The TN classification or visa pursuant to NAFTA is quicker and easier than the green card process, is not subject to annual quotas and is not subject to prevailing wage and other labor condition application (“LCA”) requirements.

Please note that TN’s are also available for Physicians, PTs, OTs, Pharmacists, Med Techs, Nutritionists & Dentists.

A VisaScreen certificate is required for nurses, PTs, OTs and Med Techs. All TN non-immigrants are subject to the laws of the state of intended employment regarding professional licenses but will not need to acquire the relevant license prior to admission to the US. However, the TN applicant must obtain the appropriate professional license from the state of intended employment prior to commencing employment.

A Canadian citizen may present the application package described above directly to an immigration officer at a US port of entry at the time of entry. The immigration officer will make the determination as to whether the applicant is admissible as a TN. No prior petition approval is required. No visa is required from a US consulate. Upon admission to the US, the Canadian citizen will be issued a Form I-94 for a period not exceeding 1 year which will be marked “multiple entry” and can be used for future entries to the US during its validity.

A Mexican citizen submits the application package described above directly to a US consulate as part of an application for a TN visa. The consul makes the determination as to whether the applicant is eligible for a TN visa. Upon admission to the US, the applicant will be given a “multiple entry” Form I-94 for a period not exceeding 1 year.

Other Details for NAFTA-TN Classification for Citizens of Canada and Mexico:

• Spouses and unmarried children under the age of 21 will receive TD dependent status.
• Children can attend school, spouses are not accorded work authorization
• Green-Card Process (Permanent Residency) is available to TNs, and the 3-year periods of stay will offer greater flexibility for those who wish to pursue their green-cards while continuing to work in the USA

For more information on the TN Solution and how it will alleviate the high costs associated with the employment of temporary and travel nurses and other healthcare workers, please contact us today.

 Frequently Asked Questions on TN Admission Period

When John McCain was championing for immigration reform in 2007, never did he think it would place him in the position he is in today.

With only 21 days left until the 2008 Presidential Election, John McCain is positioning himself to lose the Hispanic vote by a landslide margin, well below President George W. Bush’s 2004 performance.

Polls have positioned Senator Obama winning the most amount of Latino voters of any Democrat in more than a decade, while McCain is sitting at a dismal 30 percent, closer to Senator Bob Dole’s horrid 1996 result than to Bush’s historic 40% four years ago.

McCain is carrying quite a bit of baggage on both arms, as he appears to be getting no credit from Latino voters for his past support for immigration reform, while in the other hand he treads slowly with the built up hostility of the Republican Party’s take on illegal immigration.

And his attacks on Obama for immigration reform have been non-existent, who was once thought to have taken a lethally liberal stance by supporting granting driver’s licenses to illegal immigrants.

And as the four states with the largest Hispanic populations take center stage, Florida, Colorado, Nevada, and New Mexico, what was once a ray of hope for Senator McCain has emerged as a clear weakness.

For more information on McCain’s cold shoulder turn to Hispanics:

Read this article by Ben Smith from Politico.com

In this climate of immigration retrogression, it was recommended that California NCLEX nurses endorse to Vermont prior to the expiration of the 3-year window of opportunity to provide SSA numbers to The CA State Board of Nursing. The VT State Board reports that it has experienced an increase in endorsement requests as a result of this issue, leading them to review their policy and make some procedural changes, as follows:

1. VT requires the official NCLEX exam results. For example if you took the exam through CA; you will need to contact the California Board of Nursing and request a “Certified Copy of Test Results with Photo” to be sent to the State of Vermont Board of Nursing. California’s fee for this is $10.00. (If you’ve already completed this step please proceed to step 2)
2. VT will need to have the Verification of Education Form completed by your school and your official transcripts sent to them. You can print the verification of education form from their website www.vtprofessionals.org on pages 5 and 6 of the International Nurse Application.
3. VT requires the License Verification Form completed for your original nursing license and your most current nursing license. You can print this form from their website www.vtprofessionals.org on page 7 of the International Nurse Application.

Note: For nurses in the United Kingdom: VT can verify the license online. You need to fill out the Verification Form by putting in the caller code and pin number so that they can access your information from the NMC website.

Once VT receives this information, they will then be able to process your application for licensure through the state of Vermont.

As mentioned previously, please be aware when you start the re-endorsement process, that the CA Board of Nursing will have considered your application abandoned and your file will no longer be active.  Thus, it will be necessary for you to submit all educational credentials a second time to CA.  While it will be inconvenient to do so, it will protect you from having to re-take the NCLEX-RN exam.

By Thomas J. Joy, Esq.

October 2008 Newsletter

October 1, 2008 marks the start of the new government Fiscal Year 2009 (“FY 2009”). At this time the new annual quota of immigrant visa numbers becomes available. Unfortunately, retrogression is still with us.

The anxiously awaited State Department October Visa Bulletin indicates EB-3 cutoff dates as follows: China (October 1, 2001), India (July 1, 2001), Mexico (July 1, 2002), Philippines (January 1, 2005), all other countries (January 1, 2005). Earlier visa bulletins had predicted that FY 2009 would start with the more favorable cutoff dates that had existed in June 2008 just before the EB-3 category became totally unavailable from July through September 2008. 

However, heavier demand from USCIS than anticipated has caused the State Department to establish cutoff dates further back than those that existed for June 2008. Finally, a note in the October Visa Bulletin states that little if any forward movement is likely until the extent of the USCIS backlog of old priority dates can be determined. As a result, at this time, it is impossible to predict or even guess how soon immigrant visa numbers will become available for later filed cases. We will keep you advised of any new information as it is released by the State Department. 

In the area of proposed new laws to increase the immigrant visa quotas for nurses and to recapture unused immigrant visa numbers from previous annual quotas, significant progress has been made as previously reported here. The nurse legislation and the recapture legislation introduced in the House of Representatives has been repeatedly postponed for further hearings and the recapture legislation introduced in the Senate has not yet been scheduled for hearings. 

This proposed legislation is the result of bipartisan efforts. With Congress leaving for the upcoming national elections and the ongoing problems with the US economy, it is unlikely that this pending legislation will be enacted this year. 

However, due to the bipartisan support for and the significant progress of this pending legislation this past year, we are optimistic that same or similar legislation will be reintroduced in the new Congress which will start in early 2009.

As stated here previously, we advise and encourage you to continue to file your Schedule A immigrant visa petitions for nurses. This initial step in the immigrant process is not prevented by the presence of retrogression. 

By filing now, you will be ahead of the competition when retrogression is lifted by the enactment of the proposed nurse and recapture legislation.