|
April 6, 2004 immigration news update
Click for a Printable Version of this Article
1. Senators Urge DHS to Delay Visa Screen Regulation for Healthcare Workers With less than four months remaining until the implementation of new screening regulations for healthcare professionals, key senators recently sent a letter to Homeland Security Secretary Tom Ridge, urging the Department of Homeland Security to delay the effective date of the regulation until October 1, 2005. The senators expressed concern that the new "visa screen" regulation will aggravate the current nursing shortage in the United States and disrupt the delivery of health care services in many hospitals. The new regulation requires any foreign national who comes to the United States to work as a health care professional (except physicians) to demonstrate that they have received a visa screen certification from the Commission on Graduates of Foreign Nursing Schools (CGFNS). The purpose of the new rule is to ensure that any foreign health care professional working in the United States is proficient in English and as competent as a U.S. health care professional in medical knowledge. The senators' letter expressed concern that the regulation applies both to foreign health care professionals who were educated in the United States and to foreign health care professionals who have passed a state licensing exam and are currently licensed to work in that state. The letter warned that: "This redundant certification will exacerbate current shortages as alien health care professionals currently authorized to work in the United States will have to be re-certified through CGFNS. We fear this will have an adverse impact on a number of states throughout the country that rely on foreign nurses to staff their hospitals and nursing homes. We are also concerned that implementation of the regulation will disrupt the delivery of health care services along northern border states because many of the hospitals near the border employ Canadian nurses who commute across the border each day. As you know, the regulation requires Canadian nurses, who have heretofore been governed under the North American Free Trade Agreement, to present their health care certificate each time they cross the border." The certification requirement is scheduled to take effect July 26, 2004. Unless the regulation is delayed all foreign health care workers (except for physicians) performing clinical health care services must be certified by CGFNS by that date. For more information on the CGFNS certification process visit the CGFNS web site at: http://www.cgfns.org/ To learn about visa options for foreign nurses and the nursing shortage in the United States, read Visas for Foreign Nurses: http://www.millermayer.com/resources/freignnurses.html and Foreign Nurses: Dealing With the Shortage: http://www.millermayer.com/resources/fnurses.html, both on the True, Walsh & Miller web site. 2. H-2B Cap Hit; Legislation Introduced to Increase Numbers U.S. Citizenship and Immigration Services (CIS) has announced that it has received enough H-2B nonimmigrant visa petitions to meet the annual cap of 66,000 new workers. As of March 9, 2004, USCIS is no longer accepting any new H-2B petitions subject to the fiscal year 2004 cap. The H-2B temporary visa category is for skilled and unskilled workers who lack a bachelor's degree and who are coming to the United States to perform jobs that are temporary or seasonal in nature. The classification requires prearranged employment and a certification from the U.S. Department of Labor that U.S. workers are unavailable for the job. H-2B workers perform non-agricultural seasonal tasks essential to the economy. H-2B workers include restaurant, landscape, food production, and hotel service workers. H-2B workers also fill seasonal niche occupations, including flying and repairing helicopters designed to fight summer forest fires, filleting fish for foreign markets, and completing the rosters of minor league baseball and hockey teams. Now that the H-2B cap has been met, CIS will process all petitions received by March 9, 2004, and will return all petitions subject to the annual cap (along with the filing fee and, if applicable, the premium processing fee) that are filed after that time. H-2B petitioners may resubmit or file new petitions after they have received labor certification approval for work to start on or after October 1, 2004. The cap applies only to new H-2B workers, so CIS will continue to accept petitions for H-2B nonimmigrants who are: (1) extending their stay in the United States; (2) changing the terms of their employment; or (3) changing or adding employers. This is the first year the H-2B cap has been hit, and the Department of Homeland Security did not give employers advance warning. Unless Congress takes action immediately, many summer employers will have no foreign workers. This lack of access to H-2B workers will economically devastate industries and communities nationwide. In response to this threat, the "Save Summer Act of 2004" was introduced in the House and Senate on March 31, 2004. This important bipartisan legislation would provide an emergency increase in H-2B workers for the current fiscal year. To write a letter to your members of Congress supporting this bill, go to http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5462641 3. H-1B Update: Write Your Member of Congress On February 17, 2004, U.S. Citizenship and Immigration Services (CIS) announced that enough H-1B petitions had been received to meet the fiscal year 2004 mandated cap of 65,000 new workers. As such, all petitions for first-time employment subject to the annual cap received by CIS after February 17 are being returned to the petitioner. Cases that were received by CIS on or before February 17 will continue to be adjudicated in the order they were received until all available visas have been distributed. Foreign nationals looking to begin new H-1B employment should note that the FY 2004 cap of 65,000 new workers applies only to petitions filed for employment scheduled to start before October 1, 2004. Petitions for new H-1B work starting October 1 or later are subject to the fiscal year 2005 cap, and are being accepted beginning April 1, 2004. H-1B workers not subject to the numerical cap will continue to be able to apply for the nonimmigrant work visas during the remainder of fiscal year 2004. Those not subject to the cap include most current H-1B workers as well as: (1) new workers at nonprofit research organizations, government research organizations, and institutions of higher education and related or affiliated nonprofit entities; and (2) new H-1B workers from Singapore and Chile. For current H-1B workers, USCIS will continue to process petitions filed to: (1) extend the amount of time the worker may remain in the United States; (2) change the terms of their employment; (3) allow the worker to change employers; or (4) allow the worker to work concurrently in a second H-1B position. Those familiar with the H-1B situation expect a surge in cap-subject applications now CIS that has begun accepting H-1B applications for fiscal year 2005, so potential new workers should plan accordingly. It is possible the fiscal year 2005 H-1B cap will be reached by October 1, the first day of the new fiscal year. The H-1B cap presents real problems for U.S. companies. The H-1B visa helps ensure that employers have access to specialized labor that is essential to our nation's economic development and global competitiveness. Congress and the Administration need to ensure that U.S. employers can tap this talent now and in the future. Please contact your members of Congress to tell them to address this problem. Unless they hear from you, they will assume they don't need to do anything. A sample letter is at http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5183421 It only takes a few seconds to fill out and send. If you would like to learn more about the H-1B visa and the issues surrounding the annual cap, read Stephen Yale-Loehr’s testimony before the Senate Judiciary Committee on "Examining the Importance of the H-1B Visa to the American Economy," which is on our web site at: http://www.millermayer.com/new/htestimony.htm Steve chairs the AILA business visa committee, and is actively involved in lobbying Congress to increase exemptions from the H-1B cap for needed groups of temporary professional workers. 4. Immigration Fees Set to Increase, Despite Deteriorating Service U.S. Citizenship and Immigration Services (CIS) has proposed a rule that would increase immigration benefit application fees by approximately $55 per application and increase the biometric fees by $20. According to CIS, this proposed fee increase is necessary to "ensure sufficient funding to process incoming applications." The American Immigration Lawyers Association (AILA) has questioned many aspects of the proposed rule, raising doubts about: (1) the appropriateness of raising filing fees at this time; (2) the items that are proposed to be funded by the increase; (3) the methodology for concluding that these are appropriate fee amounts; and (4) the administration's lack of action in determining adequate appropriations to "turn the ship around" at U.S. Citizenship and Immigration Services. As AILA points out, in January 1998, the Commissioner of the then-INS stated that the fee increase announced at that time would not be implemented until applicant wait times started to decrease. Today, no such reticence is shown. Even though the ordinary wait times on many applications are double or triple today what they were in 1998, CIS offers no such concession to those who must pay increasing amounts for deteriorating service. A CIS news release about the proposed fee adjustments is available at the CIS web site: http://uscis.gov/graphics/publicaffairs/newsrels/feerelease_020304.pdf. 5. New York State J-1 Waiver Applications Filed The end of March marked this year's application deadline for New York State 30 J-1 waivers. As part of the annual State 30 program, the New York Department of Health acts as an "interested government agency" in recommending waivers of the two year home residency requirement for foreign medical graduates practicing medicine in underserved areas of New York State. This year, True, Walsh & Miller helped a number of excellent New York hospitals and not-for-profit health institutions file waiver requests for foreign medical graduates hoping to work in one of the New York's many health professional shortage areas. Although the application deadline for State 30 waivers in New York has now passed, many other states process J waiver applications on a rolling basis. Refer to the True, Walsh & Miller web site for a state-by-state summary of State 30 waiver opportunities: http://www.millermayer.com/resources/medical/conrad.html As background, almost all foreign medical graduates in J-1 status are subject to a requirement that they return for two years to their home country when they complete their training program. Satisfaction or waiver of this requirement is necessary before moving from J visa status to most any other visa status. J-1 waivers are sometimes available to foreign medical graduates who have an employment offer that is important to a state department of health, usually if the doctor is working in primary care in a medically underserved area in the state. This waiver option is called the State 30 program, because it is limited to 30 foreign medical graduate waivers per state per year. Refer to the True, Walsh & Miller Foreign Medical Graduate Fact Sheet for more information about visa options for foreign doctors in the United States: http://www.millermayer.com/resources/medical/medical4cont.htm 6. EAD Validity Periods May Increase An interim regulation that would allow U.S. Citizenship and Immigration Services (CIS) to issue employment authorization documents (EADs) for the entire time needed to complete an adjustment of status application has cleared the Department of Homeland Security and has been at the Office of Management and Budget (OMB) since March 4, 2004. OMB generally has 90 days to review a regulation and either reject it or clear it for publication in the Federal Register. Under current regulations, adjustment applicants are eligible to get an EAD for work authorization. Unfortunately, EADs currently have only a one-year validity period, and adjustment applications often pend for two years or more. As a result, applicants for adjustment of status are often forced to renew their work permits. EAD applications themselves take 90 days or more to be adjudicated, so applicants must apply at least three months in advance of their current EAD expiration. If for any reason they do not get a timely renewal, applicants may be forced to stop working until the renewal is issued. As noted above, this new rule would allow CIS to extend EAD validity "for a period appropriate to the amount of time needed to complete an adjustment of status application," although exactly how long EADs could be extended has not been stated. To find out more about the adjustment of status process, read the Adjustment of Status Overview at the True, Walsh & Miller web site: http://www.millermayer.com/resources/immigrant/immigrant3cont.htm 7. Congressional Offices Overwhelmed with Anti-Immigration Mail; Pro-Immigration Voices Must be Heard! In recent weeks, as talk of legalization and immigration reform has made the news, restrictionists have been going all out to defeat any change in immigration laws favorable to undocumented immigrants or to increase the level of immigration to reduce backlogs. Anti-immigration groups, as well as conservative talk radio and television programs, have stirred resentment towards America's newcomers. Congressional staffers have stated that for every pro-immigrant letter they receive, they are receiving 400 or more anti-immigrant letters. There is concern that if there is not more communication from those who have a more positive view of immigration, positive immigration reform could go nowhere. To get some movement on immigration reform, the pro-immigrant side must start communicating with policy-makers. There is a lot of support for immigration reform. Lawmakers just need to hear about it. Write your members of Congress. A sample letter is at: http://capwiz.com/aila2/mail/oneclick_compose/?alertid=3070326 A modified message can be sent to the President at: Now for something completely different: To help usher in spring and to stimulate the other, more creative side of the brain, True, Walsh & Miller is holding its first annual immigration haiku contest. This open contest comes after a heated office competition that lasted several months, in which immigration assistant Coralie Gahn took first prize with her haiku "Familial Love," a poem about family members reuniting in the United States: Missing your loved ones? You can find out more about haikus at http://www.toyomasu.com/haiku/. They usually (but not always) consist, respectively, of 5, 7 and 5 syllables in three units. As part of the competition, all readers are invited to submit a haiku by emailing Sean Koehler at sck@millermayer.com with the word "Haiku" in the subject line. The cleverest, most humorous, or otherwise most interesting immigration haiku will be published in the next immigration newsletter, and will receive much acclaim. 9. New Articles on Our Web Site Three new articles have been posted on our web site: We have a new article about social security numbers and driver's licenses for noncitizens: http://www.millermayer.com/resources/ssndl.html We have a new article about revalidating work visas by mail: http://www.millermayer.com/resources/visareval.html We have a new article about the US-VISIT program: http://www.millermayer.com/resources/usvisit.html On March 9 Carolyn S. Lee spoke about the USA Patriot Act and immigration issues. On Friday April 16 at 3 pm, Stephen Yale-Loehr will speak to international students at New York University on visa options after graduation. On Tuesday April 27 Stephen Yale-Loehr will be chairing the Practicing Law Institute's Basic Immigration Law 2004 seminar. For more information about this seminar, visit the PLI web site: http://www.pli.edu/product/webcast_detail.asp?ptid=505&stid=13&id=EN00000000002921 On Friday June 11 Stephen Yale-Loehr will moderate a panel on advanced naturalization issues at the American Immigration Lawyers Association annual conference in Philadelphia. On Saturday June 12 Stephen Yale-Loehr will moderate a panel on H and L visa issues at the American Immigration Lawyers Association annual conference in Philadelphia. Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. _____________________ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com) For general information, visit our web site at http://www.millermayer.com/
|