By Brandon Meyer, Associate and Contributing Writer

The L-1B allows companies to transfer key personnel who possess specialized knowledge of a company’s products, services, research, equipment, techniques, or management or an advanced level of knowledge or expertise in the company’s processes and procedures, from an overseas entity to the United States, provided that the employee has been employed at a qualifying overseas entity for at least one year in the last three years.  The L-1B can be useful for companies in transferring personnel to the U.S. because the L-1B does not have annual numerical limitations, like the H-1B, or is not limited to nationals of certain countries that have trade and investment treaties, such as the E-1, E-2, or TN.  

However, a perception began to spread that companies were using, if not abusing, the relatively open nature of the L-1B program to circumvent numerical limitations of the H-1B or to import lower-paid workers in lieu of hiring American workers with higher wage expectations.  Anecdotes of short-sighted, PR-challenged companies sending their American workers to train workers overseas entities before laying off these same American workers who were subsequently replaced by these same overseas workers in
L-1B status, rose to urban legend status and helped fill hours of time on nightly cable news shows.  Political pressure to “do something” about these abuses of the L-1B program grew louder and louder. 

To read the remainder of the article on the L-1B:
Read this story from Immigration Compliance Group

2. White House & Congress to Discuss Immigration Reform June 8

President Obama has invited members of Congress from both sides of the aisle to discuss immigration reform at the White House on June 8th.  An unnamed administration official stated, “The meeting will be an opportunity to launch a policy conversation that we hope will be able to start a debate that will take place in Congress later in the year.” 

We link to Politico for more on the story: 
AILA (the American Immigration Lawyer’s Association) has released an excellent PowerPoint presentation on Comprehensive Immigration Reform and why our present system is broken that we link to: 

Read more about this story at Politico.com

View a powerpoint presentation on Comprehensive Immigration Reform and why our present system is broken.

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3. Predictions - Employment-Based Visa Numbers

Chief of Immigrant Visa Control and Reporting Division at DOS, Charles Oppenheim, was a guest speaker at a May 20, 2009 American Immigration Lawyers Association (AILA) meeting.  Mr. Oppenheim’s explanations and visa number/Visa Bulletin expectations for the remainder of FY2009 and for FY2010 are referenced below.

Visa Usage:  Mr. Oppenheim stated that immigrant visa applications at U.S. consulates are down 7% from FY2008.  India will use all the visa numbers that are available to its nationals this fiscal year. This is due, in part, to huge increases in the usage of EB4 and EB5 categories. Applicants from India have used twice the number of visas estimated for FY2009. Mr. Oppenheim stated that, because of the excess demand, further retrogression may occur over the summer months.

What will EB movement look like in the coming months:  EB1 visa numbers will be used before the end of FY2009. This may result in the establishment of a cutoff date for the EB1 categories for India and China, beginning in August or September 2009. Usage in the EB1 worldwide category is also higher than expected. This may lead to a cutoff date toward the end of FY2009.

Employment-Based, Second Preference (EB2):  EB2 category worldwide is also expected to be over-subscribed and will exhaust all allocated visa numbers before the end of FY2009. To date, Mr. Oppenheim estimates that 3,200 EB2 India visa numbers have been used in FY2009. The high usage in the EB1 category has prevented the usual trickle of visas to the EB2 category. Thus, China will experience the same EB2 retrogression as India in July 2009. The EB2 China cutoff date is expected to be set at January 1, 2000.

Employment-Based, Third Preference (EB3):  All EB3 categories are currently unavailable; all available visa numbers have been allocated. No change is expected to occur until the beginning of FY2010.

Visa Numbers for Indian Nationals:  Mr. Oppenheim has set the cutoff date for EB2 India at January 1, 2000. According to current estimates, out of the approximately 200,000 I-485 applications currently pending with USCIS, 120,000 of them are chargeable to India, with the cases divided evenly between EB2 and EB3. This means that EB2 and EB3 India applicants count for 60 percent of the I-485 cases currently pending with the USCIS.

Predictions:  Oppenheim stated that he expects the EB3 worldwide category to have a cutoff date of March 1, 2003, beginning with the October 2009 Visa Bulletin. When asked about the potential cutoff dates for EB3 India, China, and Mexico, Mr. Oppenheim said that it would depend on the demand for these categories over the rest of FY2009.

Further he estimated that there are currently 25,000 EB2 and EB3 cases from Indian nationals that have been reviewed and are only waiting for visa numbers for final processing. He stated that, due to the dramatic increase in employment-based filings, visa cutoff dates for FY2010 will be much more limited to ensure that there will be a steady supply of visa numbers available throughout the year. This will lead to earlier cutoff dates and may help prevent visa categories from becoming unavailable.

Read this month's visa bulletin

4. DOL Postpones iCERT Portal for LCA's until July 1, 2009

Due to numerous problems with technology and functionality, the Department of Labor has announced that it will postpone mandatory usage for Labor Condition Applications until July 1st, with the legacy LCA portal remaining active for usage through June 30, 2009 for H-1Bs, E-3 visas and H-1B1’s.

The current portal can be accessed at: https://www.lca.doleta.gov/ and the iCERT portal at: https://icert.doleta.gov

FINALLY, H-1Bs FOR HEALTH CARE OCCUPATIONS CLARIFIED BY USCIS

By: Tom Joy, Supervising Attorney

On May 20, 2009 the U.S. Citizenship and Immigration Services (USCIS) issued a Memorandum that finally resolves the issue of whether a Physical Therapist (PT) or an Occupational Therapist (OT) is required to have a master’s degree in order to qualify for an H-1B visa.  Based on a recently added ambiguous statement in the U.S. Department of Labor Occupational Outlook Handbook that a master’s degree was preferred for the occupations of PT and OT, the USCIS started to deny H-1B petitions filed on behalf of PTs and OTs even though they had bachelor’s degrees and state licenses in the state of intended employment, all of which had been acceptable in the past for H-1B petition approval.  The Memorandum properly places the focus on the licensing requirements of the state of intended employment and not on whether the position requires or the person has a bachelor’s degree or master’s degree. 

If the person has a valid license to practice as a PT or OT in the state of intended employment, then the USCIS should not look beyond the license.  The person will be considered to meet the qualifications to perform an H-1B specialty occupation.  This applies regardless of whether the person has a bachelor’s, master’s or doctoral degree.  A person with an unrestricted license is entitled to approval of the H-1B for up to 3 years.  A person with a restricted license (e.g., a license approved except for mandatory supervised practice) is entitled to approval of the H-1B for 1 year or the duration of the restricted license, whichever is longer. 

If the person does not have a valid license to practice as a PT or OT in the state of intended employment (even if the person has a valid license from another state), then the USCIS must ascertain the licensing requirements (including educational degree requirements) for the state of intended employment.  If the person is otherwise qualified for a license except for the state-required social security card, valid immigration document and/or physical presence in the United States, then the person is entitled to approval of the H-1B for 1 year in order to facilitate the state’s issuance of a license.  In order to get an extension of the H-1B beyond 1 year, it must be shown that a valid unrestricted license has been issued. 

H-1B cap-subject cases can still be filed while the annual quota remains available for an employment starting date of October 1, 2009.  H-1B cap-exempt cases, of course, can be filed at any time.  

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Please contact Immigration Compliance Group with any questions or set up a telephone conference to personally discuss you specific needs.

Nursing Education Receives a Stimulus of Federal Funds
In the months that have followed the passage of the American Recovery and Reinvestment Act into law, the nursing community has eagerly awaited funding promised to increase nursing education.

The $787 billion stimulus package has been lauded by nursing organizations throughout the country, as the bill included over $500 million in funding for health workforce education, training and development. Nursing schools, various government programs, practicing professionals and prospective students have been waiting to hear just how much cash will be infused into nursing schools.

Beverly Malone, Ph.D., RN, FAAN, CEO of the National League for Nursing (NLN) said that this money comes at a critical time when nursing faculty and funding for education is needed more than ever. 

Read more information about the story here

NurseTogether Partners with Showtime to bring you “Nurse Jackie”
Inspired by the provocative journal of a real-life Manhattan ER nurse, Edie Falco portrays fictional ER nurse Jackie Peyton, who works in the Emergency Room at New York City's All Saints Hospital. 

Read more about the new TV show here

The Emergency Nursing Supply Relief Act (also for Physical Therapists)

HR 2536  (Reintroduced in the House May 20, 2009) 
Reps. Wexler (D-FL) and Sensenbrenner (R-WI) introduced the Emergency Nursing Supply Relief Act (HR 2536).  This is an excellent 1st step in a process that will need to travel its course to the Judiciary Committee; when passed there, it will be offered up for a vote in the House or Representatives.  IF approved, then the Senate must consider the legislation.  If passed, then it is referred to the President for signing.  This can be a lengthy process; however, it could be shortened by attaching it as an amendment to a larger piece of legislation and make it through the system this way.  We need a lot of muscle behind this Bill and we ask that you take the time to contact your representatives and tell them about the urgency of the nurse and PT shortage in the USA affecting the industry and your business particularly

Track the bill here

US Senators Introduce Legislation to Reinforce Family Unity: Reuniting Families Act 2009

Senators Menendez (D-NJ), Edward Kennedy (D-MA), Charles Schumer and Kirsten Gillibrand (D-NY), introduced legislation to re-emphasize family unity in the US immigration system so that legal immigrants might reunite with their families and end decade long waiting times for legal immigrant visas.
The legislation would reinforce the historical emphasis on current wait times in the family immigration system by:

• Helping an estimated 322,000 spouses and children under the age of 21 of lawful permanent residents who are waiting in line to reunite with their families by reclassifying them as immediate relatives
• Addressing the decades-long backlogs for certain countries by raising the per-country immigration limits from 7% to 10% of total admissions
• Protecting widows, widowers and orphans by allowing them to continue to wait in line for a visa after the death of the sponsoring relative
• Utilizing an estimated 400,000 family-sponsored and employment-based visas that went unused between 1992 and 2007
• Respecting the contribution of Filipino World War II veterans by reducing their children’s wait times for an immigrant visa
• Promoting family unity by allowing more people who are already eligible for an immigrant visa to efficiently use our legal family immigration system
• Providing equal treatment for stepchildren and biological children by allowing stepchildren under the age of 21 to immigrate upon their parents’ marriage (current age is 18).   

Read more about this story here