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Bloggings on Updates in Immigration Law

by Carl Shusterman

Editor's note: Here are the latest entries from Carl Shusterman's blog.

March 31, 2009

H-1B Filing Season Starts - Unneccessary Problems Plague Employers

Today, immigration attorneys and employers will submit H-1B petitions to the USCIS, probably in excess of the numerical caps. However, the number of H-1B petitions filed will, no doubt, be reduced by the current recession and by the restrictions imposed by law on employers receiving TARP funds.

Unfortunately, a number of issues have arisen recently which will unnecessarily increase the number of H-1B petitions filed, and make the continued employment of needed professionals problematic.

The USCIS has denied cap-exemption to certain institutions recently on the grounds that the word "affiliated" in AC-21 implies that they are owned by the university that they are affiliated with.  This is despite the fact that neither the law, the legislative history nor any regulation imposes a co-ownership requirement.  Because of this new USCIS policy, a number of employers are filing H-1B petitions under the cap to avoid petition denials later in the year on the grounds that they are not cap-exempt.

For example, a non-profit hospital in a medically-underserved area obtained the approval of a physician in H-1B status on a cap-exempt basis because the hospital has an affiliation agreement with a university.  The physician's H-1B status needs to be renewed in the fall of 2009.  Usually, the hospital would wait until the fall and submit an H-1B extension of status for the physician on a cap-exempt basis.  However, because of recent USCIS denials of such petitions, the hospital has no choice but to try to obtain the approval of a cap-subject H-1B extension.

Another new USCIS policy that has some employers worried involves the minimum educational requirements for physical and occupational therapists.  The regulations are clear that these standards are established by the state licensing boards.  Thousands of H-1Bs and I-140s have been approved for licensed therapists with B.S. degrees.  Despite this, the USCIS has recently started to deny H-1Bs and I-140s for such therapists relying on the Labor Department's Occupational Outlook Handbook (OOH).  The three government-authorized healthcare credentialing organizations (CGFNS, FCCPT and NBCOT) have all informed the government that they were erroneously relying on the OOH.  See these letters on "Allied Health Professionals" page at (Occupational Therapists)

and (Physical Therapists) 

However, employers had to submit and pay filing fees for H-1B petitions for therapists today without any guidance from the USCIS as to whether a state-issued license for a therapist with a B.S. degree in Occupational or Physical Therapy will be sufficient to establish that the therapist meets the minimum educational requirements. 

The failure of the USCIS to follow immigration laws and regulations is having a damaging effect on U.S. employers and patients alike.