PEDERSON IMMIGRATION LAW GROUP NEWSLETTER
October/November 2009

FOREIGN PHYSICIAN CONFERENCE AND JOB FAIR--LAST ONE!

J-1 & H-1B FOREIGN PHYSICIAN CONFERENCE AND JOB FAIR.  The last seminar of the year will be held on Saturday, October 24, 2009 in Baltimore, Maryland.  The conference will feature recruiters with H and J eligible jobs and will feature Jan Pederson as the key speaker on physician immigration options.  The Job Fair will be from Noon to 5 p.m. and the conference will be from 1 p.m. to 5 p.m.  Attendance is free.  You can register at www.j1conference.com or at the door.

DHS NEWS

H-1B EMPLOYER ALERT!  DHS may come knocking at your door asking questions about your H-1B employees. Pederson Immigration Law Group, P.C. has learned that U.S. Citizenship and Immigration Services is increasing the frequency of employment site inspections for H1B and R-1 employers.  Our readers report that DHS has even visited a VA Hospital asking H-1B questions.  It is important to know your rights and to call an attorney.  While the inspections are being conducted under the supervisions of  The Fraud Detection and National Security ("FDNS") branch of USCIS, which is tasked with determining whether any violations of the Department of Labor regulations are occuring.   USCIS has assured the immigration community that the scope of inquiry made by FDNS is to be quite limited.  If, however, a Department of Homeland Security official visits your place of employment, you should nonetheless immediately contact an immigration attorney. Note that the site visits are being conducted by private contactors who have an H-1B petition and perhaps the Labor Condition application in hand and appear to have little knowlege of H-1B employment situations.  Employers and H-1B workers are encouraged to speak with an expert immigrant attorney before speaking to a DHS representative, not because the terms and conditions set forth in the H-1B petition are being violated, but because of the risk that the contractor will not understand the H-1B and LCA rules.  Here are some examples which have been reported:

• The contractor believed a violation existed because the H-1B worker was not at work because he had not been issued an H-1B visa and the start date of October 1, 2009 had not yet been reached at the time of the site visit.
• Confusion between job title on H-1B and job position.  For example, many university teaching hospitals list the "title" on the H-1B as "Assistant Professor of Medicine (Cardiology)" but the person functions as a "cardiologist" with teaching, research and clinical duties in cardiology as duties.  The investigators have actually alleged such is a misrepresentation where the "O-Net Classification" of the DOL differs from the internal classification.  Alert:  Both the employer HR contact for USCIS and the H-1B employee should have copies of and be aware of the contents of the H-1B petition.
• A physician is employed by Hospitalist Company A with headquarters in Phoenix, Arizona to work at Hospital X in Houston, Texas.  The investigator reports to Hospital X looking for the CEO of Company A, who is several states away.  The investigator concludes the alien is supposed to be in Phoenix where the administrative headquarters are located.  This occurred where the H-1B petition clearly indicated the Houston work location and the relationship between Company A and Hospital X.

The investigators are polite and courteous, but are just not equipped with sufficient knowledge of the H-1B process, particularly in the physician context to conduct investigations with such potential adverse consequences for employers and H-1B physicians.

CAVEAT:  Contact an expert immigration attorney before you speak to an investigator.  Politely explain that you intend to fully cooperate with them but would like to reschedule the appointment to have your attorney present at the time the questions are asked.  H-1B law, regulations and policies are complicated for seasoned immigration attorneys and too much so for questions to be answered without a prior review of the documents by an attorney.

H-1B CAP-SUBJECT VISA NUMBERS STILL AVAILABLE!  As of September 25, 2009, USCIS had received 46,700 H-1B cap-subject petitions and approximately 20,000 qualifying for the advanced degree cap exemption.  A total of 65,000 visa numbers are available each fiscal year, so employers and foreign nationals are urged to take advantage of this phenomenon!

DOS NEWS

NOVEMBER 2009 VISA BULLETIN:  The Department of State released the Visa Bulletin for November 2009 on October 9.  The employment-based, second preference category has tragically not moved a single day for India and remains at January 22, 2005.  Employment-based first, fourth, and fifth preferences, however, remain current for all countries.  Mr. Charles Oppenheim who is the official in charge of the Department of State visa number allocations and probably the only person alive who truly understands the mysterious and sometimes mystical movement of immigrant visa numbers made the following predictions for the movement of visa numbers during the current fiscal year as of October 17, 2009:

• Indian EB2 may become unavailable by March or April 2010 for the remainder of the fiscal year.
• Indian and China EB3 category will like advance a little in December 2009.
• Indian EB2 has 35,000 applicants in line.
• Indian EB3 has 54,000 applicants in line.
• Worldwide EB2 should remain current for this fiscal year.
• There are 15,000 EB2 Chinese applicants in USCIS line as of 10/13/09.

More Factoids About the Elusvie Immigrant Visa Numbers.

1. For about the past year, the USCIS has been requesting visa numbers from the Department of State using a queueing system.  If a visa number is available, the Department of State will immediately email a visa number to USCIS to use for adjustment of status.  If a visa number is not available, the USCIS request for a visa number will be into a queue and a number will be automatically released to USCIS when the priority date is reached.  As a result, there are currently 15,000 China EB2 numbers in the queue from USCIS; 35,000 India EB2 numbers in the queue; 54,000 India EB3 numbers in the queue.   
2. The annual limit for EB2 and EB3 is 3000 per country plus fall down and cross over numbers.  The fall down concept means that unused numbers in EB4 fall down to EB5; unused numbers in EB5 fall "up" to EB1; unused numbers in EB1 fall down to EB2 and unused numbers in EB2 fall down to EB3.  The cross over concept means that if it appears toward the last quarter of a fiscall year that the "worldwide" category will not use all its numbers, they may be used by the oversubscribed employment-based countries such as India, China and the Philippines on a first come, first served based.   
3. The problem is that there has been heavy numbers usage in the EB1 category in the past few years, so there are fewer numbers to fall down. 
4. EB4 will likely use all its numbers this year, primarily for religious workers. 
5. EB5 (immigrant investors) used 4500-5000 of the allotted 10,000 immigrant visa numbers last year.  EB5 will likely continue to be current all year. 
6. There will likely be no fall down at all to EB3 this fiscal year, thus, the category will not advance much at all. 
7. The family based immigrant visa demand has greatly decreased.  Thus, most of the family based cut-off dates will advance quickly this year.  The key to whether the F2A (spouse or minor child of LPR) category advances this fiscal year will be the demand by Mexico for F2A immigrant visas.

To view the Bulletin, use the following link:  http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.  Please email your questions to us regarding priority dates, a topic worthy of a graduate level thesis

LEGISLATIVE NEWS!

J-1 & H-1B FOREIGN PHYSICIAN LEGISLATION UPDATE!   The Conrad 30 Program has been extended until September 30, 2012.  On October 7, 2009 the House and Senate Appropriations Committees issued a conference summary on the FY 2010 Homeland Security Appropriations Bill (H.R. 2892).  The conference agreement provided for a three (3) year extension for the Conrad State 30 Program which expired on September 30, 2009.  Passage of this legislation represents a great victory in these anti-immigrant times in Congress.

A more comprehensive bill to benefit J and H physicians is Senate Bill S.628, which would provide for a permanent reauthorization of the Program.  This bill was most recently referred to the Committee on the Judiciary on March 18, 2009, and we urge all our readers to write to their Congressional Representative and demonstrate their strong support for S.238 provide much needed relief for both H-1B and J-1 Physicians who agree to work in medically underserved areas for three years, which includes:

• Waiver of the six year limit on H-1B status.
• Exemption from the EB2 immigrant visa quota, which would be a wonderful benefit for physicians born in India who now face a seven to ten year wait for a green card in this category.   The provisions of S. 628 can be found at www.thomas.loc.gov. 

You can locate your representative at:  www.congress.org.  Urge your Senators to co-sponsor the bill and urge your Congressperson to introduce a companion bill.

DOL NEWS

BLEAK PICTURE PAINTED FOR PERM LABOR CERTIFICATION PROCESSING TIMES!  As of September 22, 2009, the Department of Labor reported that it is currently processing PERM labor certification requests filed in December 2008 for cases which are not audited.  Approximately 24,600 (or 37% of the case load) of the PERM requests are subject to random "audits" by DOL.  The current processing time for audited cases, regardless of the reasons, is October 2007.  Because a PERM application is a paperless application filed online, no supporting documents are filed.  Thus, an audit request can be for something as simple as a copy of a university degree or a medical residency certificate.  Such request will kick the PERM application to the back of the audit queue which is now taking two years.

A recent trend has developed in which many cases have received a secondround of audits.  With the downturn in the economy, DOL is auditing cases and requesting that the employer provide resumes of all U.S. workers who may have applied for the advertised position.  This two-step audit process adds time to the already signifcant backlog in processing times that DOL has been experiencing for the past year.  

There is also a special queue for "government error" cases where the Department of Labor clearly erred in denying a PERM.  The Department of Labor reports there is no waiting period at all if it is a government error case.  However, it may take a long time for the "government" to admit its error.  

So, the DOL promise of 45-60 days adjudication of PERM cases when the new,"streamlined" PERM process was rolled out in March 2005 has not been kept.   As days of waiting have rapidly become anxious months and even years, employers desperate to provide stability to its talented employees are looking for other solutions and employees are giving up and moving abroad to more welcoming countries where they will compete against American employers in the global economy.

In the interm, please feel free to consult with an attorney at Pederson Immigration Law Group on Options to Avoid the Eternal Waiting in the PERM line, such as EB1,

MORE H-1B CHANGES ON THE WAY: PREVAILING WAGES TO BE CENTRALIZED. The U.S. Dept. of Labor ceased funding state-level State Workforce Agency programs and will centralize all Prevailing Wage determinations into a Washington, D.C. office effective January 1, 2010. According to DOL, their stated goal for this centralization is to be able to issue uniform prevailing wage determinations. Previously, individual state SWA's collected wage information from local employers, and the local SWA then provided prevailing wage determinations for their state for all H-1B, H-2B, and PERM cases. DOL will now centralize all prevailing wage requests to a new office in Washington, DC, called the National Prevailing Wage Center. Mr. Bill Rabung will be the Center Director at NPWC. SWAs will complete all prevailing wage requests and appeals pending on December 31, 2009; DOL also reports that mailings initially sent to the old centers will be forwarded to the new center for the first few weeks.  Delays are to be expected as the new program is rolled out, as PERM and H-1B regulations do not mandate a set processing time for PWDs.