We have been advised that USCIS will hold a 2nd in-person and teleconferenced meeting on the above topic on Friday, March 26th at 3:00 (Eastern). We link to a copy of the Meeting Invitation that contains the RSVP information.

The American Immigration Lawyers Association (AILA) sent a letter to USCIS, requesting that the January 8th “Neufeld memo” on the “employer-employee relationship” be withdrawn listing four key problems.

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Here’s an update with some new developments in re the H-1B Memo:

1. The memo is a new policy that is inconsistent with current regulations: The regulations already define “employer” for H-1B context and indicates control when the employer “may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The Memo adds additional requirements beyond what the regulations state.

2. The position taken by USCIS imposes significant economic burdens on business, at a time when the government should be trying to encourage business growth, in that employers will be required to spend considerable time and money gathering additional evidence to file their H-1B petitions and/or respond to RFE’s. Also, AILA pointed to several studies of the positive economic impact of H-1B employment, including a study that found that “U.S. technology companies increase their employment by an average of five U.S. workers for each H-1B worker they hire.”

3. The memo will have serious adverse affects on employers and individuals: AILA pointed to state restrictions on physicians being employed directly by hospitals and to locum tenens and other temporary staffing arrangements in the health care arena (including therapists) where it will be difficult to satisfy the new standards of the memo. AILA also pointed to government contracts as not being able to meet the standards. The memo will also negatively affect H-1B workers who change employers or extend status, and may have adverse effects on permanent residence petitions. AILA noted that it is not just the H-1B petitioner and the H-1B visa holder that are impacted — the end-users are also affected as they may experience a disruption in work for an H-1B worker that is not able to timely extend status or when additional staffing is needed.

4. The policy is spreading to other non-immigrant and immigrant petitions: AILA noted that USCIS has been adjudicating L-1 petitions and I-140 petitions based upon this new, heightened standard of the employer-employee relationship.

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For those of you who might have missed the Immigration Solutions teleconference that we had on “Tougher Standards for H-1B’s”, you can access the audio recording here.

If you would like to share with us any recent experiences you’ve had or your input as to how this Memo has impacted your business, please feel free to do so.

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Lastly, we are available to assist you with your H-1B filings and have developed some smart approaches as to how to deal with these new regulations and document requirements. Contact us today. If you file your own H-1B cases and require consultation or a skilled attorney to review your petitions, we also offer these services.

Schedule A Nurse Visas: Improving the Processing

In a very promising development, on December 5, 2008 the Office of the Citizenship and Immigration Services Ombudsman published it recommendations as to how to improve the processing of Schedule A nurse cases and delivered the 11-page Report to Congress on Monday, December 8, 2008. 

The recommendations are based on a recent nationwide teleconference conducted by the Ombudsman at which Immigration Solutions was present. Immigration Solutions has obtained an advance copy of the report which can be accessed here.

Those of you who have read the monthly newsletters and periodic newsflashes published by Immigration Solutions and who have participated in teleconferences presented by Immigration Solutions, will readily recognize that the report repeats and reinforces everything that Immigration Solutions has discussed and presented over the past few years.

The attached report, while specifically providing recommendations for improving the processing of Schedule A nurse cases, should also be required reading for all persons active in the field of recruiting foreign nurses to the United States. 

The report provides an excellent history of the issues and discusses the effect of the nurse shortage in the United States.  It explains the limited nonimmigrant visa options available to nurses (TN, H-1B and H-1C).  Specifically, the report provides statistics of how few H-1B nurse cases have been approved recently (38 cases in 2006, 66 cases in 2007 and only 136 in 2008).  In addition, the report discusses the immigrant visa process for nurses through Schedule A and the two main problems with that process, i.e., the delays at USCIS in processing the I-140 visa petition and the immigrant visa quota delays.  We note that the report references the fact that one of the Service Centers charged with adjudicating Schedule A casework is some 4 months behind what the Processing Report presently indicates.

The Ombudsman concludes the report with the following recommendations:

• That USCIS separate and prioritize Schedule A green card nurse applications so that they can be expedited upon immigrant visa availability.
• That USCIS centralize Schedule A nurse applications at one designated USCIS service center to facilitate more efficient and consistent processing of Schedule A applications.
• That USCIS regularly communicate with DOL and develop points of contact at DOL to discuss concerns and direct inquiries regarding the processing of nurse applications.

In conclusion, while the report makes recommendations to improve the processing of the I-140 Schedule A petitions at the USCIS, legislative action is still needed to increase the number of immigrant visas available each year for nurses. Indications so far from incoming President Obama and the incoming Congress are good that this issue will be dealt with early in 2009.  The Ombudsman’s Report and the reasonably good chances of increased immigrant visa quotas for nurses reinforce our opinion that hospitals, staffing agencies and other healthcare providers should be filing I-140 Schedule A visa petitions now to establish their position on the immigrant visa quota waiting list in order to be ahead of the competition when more immigrant visas become available and the processing procedures improve and become faster.      

Please feel free to contact us with any questions that you might have pertaining to this information.  As always, we are available to assist you with your immigration needs for all healthcare occupations.  This is our area of specialty.  Our highly trained staff stands ready to work with you on designing an immigration program that suits your specific needs and requirements for 2009.

For more information on the report:
Read the original congressional memo