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.

Reported in Computerworld

USCIS officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year.

The move marks a nearly five-fold increase in inspections over last fiscal year, when the agency conducted 5,191 site visits under a new site inspection program. The new federal fiscal year began Oct. 1.

Tougher enforcement from U.S. Citizenship and Immigration Services comes in response to a study conducted by the agency last year that found fraud and other violations in one-in-five H-1B applications.

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications. Mayorkas’ letter was released on Tuesday by Grassley.

“The inspection program determines] whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described, and paid the salary as identified in the petition,” said Mayorkas in his letter to Grassley.

…As part of its enforcement effort, Mayorkas said the Citizenship and Immigration Services has hired Dunn and Bradstreet Inc., which provides credit reports among other services, to act as “an independent information provider” and help verify information submitted by companies hiring H-1B workers.

Links to other related articles:

ICE Asst. Secretary Announces 1,000 New Workplace Audits

Anger up, Visas Down

Tech workers take H-1B case to supreme court

Share your thoughts with us on this.

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.

Today, the New York Times reports that the U.S. Citizenship and Immigration Service, USCIS, within the Department of Homeland Security is taking steps to prepare to process the visa applications that would be generated if comprehensive immigration reform with a broad legalization component passes the Congress in the next year. Referring to the expected surge in processing, USCIS Director Alejandro Mayorkas told the Times, “We are under way to prepare for that.” The following is a statement by Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit pro-immigrant advocacy organization in Washington.

The federal government is gearing up to process immigrants into the legal system and onto the tax rolls, which means the Obama Administration is serious about aligning itself to fight for immigration reform before Congress faces voters again in 2010.

We know that lawmakers in the House and Senate are developing legislative proposals and we know the commitment of Democratic leaders and the President to moving reform forward. Just last week, 111 Democrats in the House wrote to President Obama requesting immigration reform action this year. So we feel confident that a comprehensive immigration package will be unveiled this fall and will move forward early next year.

For additional info.

It’s hard to imagine that USCIS could get any more enforcement oriented than this filing season, being totally preoccupied with fraud.  Computerworld reports that Senator Grassley is asking immigration officials to toughen their demands for evidence from companies hiring visa workers.

His letter to USCIS Director Alejandro Mayorkas, released Tuesday, also comes just prior to the start of the new fiscal year, Oct. 1 and the release of 66,700 H-1B visas petitions, a number well short of the cap, applied for since April 1, the start of the annual petition process.

In a statement accompanying the release of his letter to Mayorkas, Grassley said, that “Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans. Asking the right questions and requesting the necessary documents will go a long way in getting out the fraud in the H-1B program.”  For more on this, please refer to above link and Grassley’s letter to USCIS.

Further to our below blog post, the USCIS today published Q&A on the pending employment-based case inventory.  We link to this for your reference.

The first question that they answer is always what we wonder about, and that is:

Q: Why is the wait so long for my employment-based green card?

A: A visa must be available before a person can obtain an employment-based green card.  Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately.  Therefore, some people have to wait in line until a visa is available.  The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year.  About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad.  Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa.   How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Q: What information do I need to have before using the pending Form I-485 inventory reports?

A: You need to know your priority date and your preference category to use the pending Form I-485 inventory reports.  For more information on priority dates and preference categories, see the “Visa Availability & Priority Dates” and “Green Card Eligibility” links to the right.

Q: How do I read the pending I-485 inventory reports?

A: First, click on the link to the report you want to view. Once you click on the link, the report will appear and you will see a series of charts, one for each preference category.  You will see that each chart has different numbers for each month and year.   These numbers show how many green card applicants have priority dates in that month and year.  To figure out how many applicants have earlier priority dates, add all the numbers from all the cells that correspond to earlier months.

USCIS Releases I485 Inventory

On September 23, 2009, remarkably, USCIS for the first time published an inventory of I-485 data online. Applicants can more reliably estimate their expected waiting time for green cards and thus, finally make informed life decisions in career development, family, and becoming new Americans. Congratulations to USCIS, particularly Deputy Chief of Service Center Operations Robert Kruszka and his team, for working with stakeholders including the Legal Immigrant Association in particular and recognizing the importance of making this inventory public.

We link to Q&A and the Inventory Tracker.

After looking at these startling numbers, there is no question that our immigration system needs reform!

Our firm participated in the webinar (one of many scheduled through the month of September) today, and we were pleasantly surprised — it’s terrific and we highly recommend it.  They walk you through their presentation and also walk you through the actual E-Verify log on and inquiry process.  They answered questions through email and also opened up for a 1/2 hour of live Q&A — very well organized.  For information by telephone, you can call:  888 464.4218.  We will shortly be receiving a transcript of Q&A and links to their presentation and we will share these when received.

If you are interested in setting up a presentation for your organization, or interested in scheduling a live speaker for an event or conference, you can do so by calling the above telephone number or emailing:  E-Verify@dhs.gov

In the meantime, we wanted to share a few resources that we think are worthy, as follows:

1)  Where can you find the law:  Federal Register:  http://edocket.access.gpo.gov/2008/pdf/E8-26904.pdf

2)  The link to the DHS webpage for E-Verify

3)  FAQ Link

4)  Form I-9, Employment Eligibility Verification Information

5)  How do I complete Form I-9?  http://www.uscis.gov/files/nativedocuments/E3eng.pdf

6)  USCIS Supplemental Guide 9/8/09 for Federal Contractors

Lastly, there is a very interesting article on this topic in today’s Wall Street Journal that we link to.

We will continue to provide any and all information and resources that we feel are informative on this topic.

For what may by the first time, the number of H-1B petitions withdrawn by applicants or rejected by U.S. authorities is exceeding the number of new petitions for the visas – as published in Computerworld 7/22/2009.  Employers are finding it impossible to respond to the burdensome and extensive requests for additional evidence, and are withdrawing their petitions in this season of high scrutiny and enforcement.

We link to this article.