In Focus
A monthly bulletin from Immigration Solutions
February 2008
In This Issue
H-1B Visa Cap & Healthcare Professionals
Visa Cap Ceiling Reached
Mexican Nurses to Fix U.S. Shortage?
H-1B Precautions for Employers
USCIS Improves E-Verify System
Don't Get Border Crossing Blues
Presidential Candidates on Reform
Petty Crimes Could Lead to Deportation
Grassroots Organization Rallies to Action
E-Learning, a Possible Solution for Nursing Education?
REAL ID Final Rule
Develop A Mentoring Culture
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A late November 2007 Los Angeles Times - Bloomberg poll revealed how little opinion has changed when it comes to Immigration Reform:
  • 63% of Democrats
  • 64% of Republicans
  • 57% of Independents;
favor allowing illegal immigrants who meet certain conditions - registering, being fingerprinted, paying a fine and learning Englsh - to earn citizenship over time.

Immigration Solutions wants to know how you feel about this: 
Take Our Survey On Immigration Reform!

(Results of the survey will be revealed in March)

H-1B Visa Cap and Healthcare Professionals
h1b visa
By Thomas J. Joy, Immigration Solutions
Affiliated Attorney

On October 1, 2008 the annual quota of 65,000 H-1B visas will become available to take effect for employment for the 2009 fiscal year (October 1, 2008 to September 30, 2009).  H-1B visas are available where the job offered is in a specialty occupation, i.e., the position requires a minimum of at least a 4 year bachelors degree or the equivalent and the foreign national has at least a 4 year bachelors degree or the equivalent.  Petitions by employers to obtain one of these 65,000 H-1B visas can be filed as early as 6 months prior to October 1 each year.  

For the annual quota of H-1B visas to become available October 1, 2008, the earliest filing date will be Tuesday April 1, 2008.  If the law is not amended between now and April 1, 2008 to increase the quota, it is anticipated that the entire annual quota will be exhausted on April 1, 2008.  On the first day of filing in April 2007, it was reported that 150,000 H-1B visa petitions were filed to claim one of the 65,000 H-1B visas to become effective on October 1, 2007.  A random lottery was held among the 150,000 petitions filed to determine which would receive one of the 65,000 H-1B visas.  As stated above, it is anticipated that the same scenario will develop on April 1, 2008 except with even more petitions being filed that day.  Therefore, it is critical that H-1B petitions subject to the annual quota be received by USCIS on Tuesday April 1, 2008 in order to have any chance of obtaining one of the 65,000 H-1B visas to become available on October 1, 2008.  Petitioning employers must start now to prepare such petitions and must send them by guaranteed overnight delivery (e.g., FedEx, USPS Express Mail, etc.) on Monday March 31, 2008 for delivery on Tuesday April 1, 2008.

The annual quota limitations do not apply to extensions of H-1B's for the same employer, changes of employer from one H-1B employer to another, H-1B employer petitions seeking concurrent H-1B employment, and petitions filed by exempt petitioners.  Exempt petitioners include institutions of higher education and their related or affiliated nonprofit entities, nonprofit research organizations and governmental research organizations.

Registered nurses are generally not eligible for H-1B visas because all states permit nurses to be licensed with less than a 4 year bachelor's degree.  However, in rare cases, it may be possible to obtain an H-1B visa for a nurse where the petitioning employer can prove the following:
  1. A bachelors degree or higher degree or its equivalent is normally the minimum requirement for entry into the position;
  2. The degree requirement is common to the industry for parallel nursing positions;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the position's duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree or its equivalent.
In certain cases, 3 years of specialized training and/or experience can be substituted for each year of college level training that the nurse is missing toward a 4 year degree.

In summary, in rare cases a registered nurse may be eligible for an H-1B visa if both the position and the individual nurse meet the requirements described above.

Certain advanced practice nurse occupations may qualify for H-1B visas if the position requires and the individual has advanced practice certification.  

Certain upper level nurse managers in administrative positions may qualify for an H-1B visa.   

H-1B visas continue to be viable options for physical therapists, pharmacists and other occupations that require a 4 year degree.  

For citizens of Canada and Mexico, the TN visa or classification is available under the North American Free Trade Agreement (NAFTA) as an alternative to the H-1B visa for registered nurses and other professions listed in NAFTA.      

If you have any questions pertaining to this information or are an employer and wish to discuss bringing H-1B healthcare professionals onboard, please contact us for a free consultation.

Businesses Face Seasonal Worker Shortages as Visa Cap Ceiling is Reached
Migrant WorkersThe H2B Visa program has been a redeeming feature for many seasonal businesses.  However, with the program's limit often reached before many state companies are allowed to apply, it has left employers who need seasonal employees with little to no options.

The H2B visa program allows thousands of workers into the United States on temporary visas to take seasonal positions that are hard to fill otherwise.  For the past three years, the exemption has allowed the landscaping and hospitality businesses, as well as other industries, to get around a 66,000 annual cap on H2B visas that Congress set in 1990.  

But late last year, the exemption was caught up in a fight over broader immigration issues.  The exemption originally permitted workers employed by U.S. businesses in any of the preceding three years to return to their jobs without counting against the cap.  But on Sept. 30, 2007, the exemption lapsed and the Congressional Hispanic Caucus blocked its extension.  Now, the 2008 H2B visa limit has been reached, with more than eight months remaining in fiscal 2008.  

Hispanic leaders have said they want temporary work visas of all types to be addressed as part of the larger immigration reform issue nationally.  They are in fear that piecemeal measures designed to ease worker shortages would allow the business community to abandon its previous support for a more comprehensive immigration overhaul.  This would include addressing the status of millions of illegal immigrants already living and working in the United States.  

Hispanic lawmakers have said they will continue to fight H2B visa exemptions and other independent immigration measures in 2008.

For more information on seasonal worker shortages as the visa cap is reached:
Read this article from CQ Politics.   

Could Mexican Nurses Solve the U.S. Nursing Shortage?
Mexican Nurses
The national nursing shortage is nothing new.  For years, advocates have pushed for new measures to create more available nurses in the U.S., and now one hospital in Southern California could have a solution right next door, in Mexico.

Potentially, an unlimited number of Mexican nurses would work in the United States under a special provision of the North American Free Trade Agreement, but few have been successful.  Their biggest hurdle, the English language barrier.  

Mexican nurses could fill a critical need for bilingual and bicultural personnel in regions with a large immigration population, such as Southern California. They could also help alleviate a shortage of nurses in California, where the number of RNs per capita is lowest in the United States.  A study shows 622 nurses for every 100,000 residents, compared with the national average of 787.

Advocates against bringing in Mexican nurses have said the one factor against the nurses has been their quality of training.  One chief nursing officer said, "They would rather go to the Philippines" to get nurses.

Education is not the only characteristic against Mexican nurses, linguistic, cultural and bureaucratic barriers are making it difficult for transitions.

Before working in the United States, all foreign nurses must partake in a lengthy screening process that includes an evaluation of their nursing credentials by state board officials.  Those from non-English speaking countries must also pass a English-language proficiency exam.  If they fall short of these tests, they are required to take additional classes, and only then are they allowed to take the U.S. standardized test for registered nurses.

Mexican nursing officials have said that of the nearly 600 nursing schools in Mexico, those at the upper-levels are of the highest quality and produces very efficient nurses who could easily make the transition into the United States.  

As Mr. Joy's lead article indicates above, most of the foreign nurses who want to work in the United States are not eligible for temporary, nonimmigrant visas. However, Mexican and Canadian nurses qualify for another kind of work related statis authorized under NAFTA that has no quotas.  More than 5,000 Canadian nurses commute across the northern border to jobs in the United States under the NAFTA Agreement in TN classification - according to the Commission on Graduates of Foreign Nursing Schools (CGFNS).

The Chicago-based National Council of State Boards of Nursing, which administers standardizes U.S. nurse licensing exams, said that the largest number of foreign-educated nurses who qualify to work in the United States come from the Philippines, followed by India, South Korea and Canada.  

In 2006, almost 16,000 foreign-educated nurses passed the U.S. licensing test for registered nurses on their first try.  Only 21 of those who passed were schooled in Mexico, according to the council. Those 21 were among 92 first-time test takers from Mexico.  

The California Board of Registered Nursing shows only 61 Mexican-educated nurses were licensed in the state from January 2005 through September 2007.

For more information on the potential number of Mexican nurses who could work in the United States:
Read this article from the San Diego Union-Tribune.

Employers Must Prepare as H-1B Filing Period Nears
The USCIS is expected to receive more than 200,000 H-1B visa petitions on April 1, 2008, the first day that applications may be filed for new employment starting October 1, 2008 -- that is about three petitions for each available visa.

Employers must prepare and begin to plan immediately with the demand projected to exceed the supply so substantially.

The following steps will allow employers to be prepared for the filing rush and be ready in the event that their H-1B applications are not selected for processing:

  • Human Resources must remind Managers that H1-B petitions must be received by April 1 in order to have a chance to be processed.

  • Employers need to identify which current and prospective employees will be the subjects of the H1-B cap.  The cap is subject to those seeking H1-B status for the first time.  Only 65,000 H-1B visas annually for professional workers in specialty occupations are approved.  Another 20,000 visas are put aside for individuals who have earned a Master's degree or higher from U.S. Universities.

  • Employers must begin to explore alternatives to the H1-B visa, such as E-3 visas for Australian nationals, and TN visas for Canadian and Mexican nationals, H-1B1 visas for Chilean and Singaporean nationals, J-1 trainee visas, and O-1 visas for individuals of extraordinary ability.  Each category has its own distinct set of practical considerations and some offer considerable advantage over the H1-B. 

  • Employers can also consider transferring employees abroad for one year and bringing them back into the USA in L-1 or L-1B classification, if applicable, (there is no annual quota for L visa holders).  Another alternative would be to commence the appropriate immigrant visa/permanent residency process for the  L visa holder and thereby obtain employment authorization while the case is pending adjudication.
Individuals not affected by the cap include employees currently in H-1B status, as well as most H-1B employees transferring from another company and employees seeking H-1B status extensions or amendments.
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USCIS Announces Improvements for E-Verify Telephone Customer Assistance
The U.S. Citizenship and Immigration Services recently announced efforts to expand and improve contact services for customers to obtain important information and assistant on the E-Verify program.

Beginning January 11, 2008, E-Verify will expand the available hours for customers to reach program support by utilizing the USCIS National Customer Service Center. Employers and other requesting information on E-Verify can contact the program number at (888) 464-4218 from 8 a.m. until 5 p.m., Monday-Friday, regardless from which time zone the call originates.

By using this 'tiered' call handling process through the National Customer Service Center, the USCIS is able to reduce wait time for customers.  Assigned agents at the NCSC will handle routine calls, while issues that are more complex will be transferred directly to analysts assigned to the USCIS E-Verify program in Washington, D.C.

In the coming months, USCIS will offer additional access methods for E-Verify customers.  In addition, USCIS will proactively call new E-Verify customers within 24-48 hours of registration to offer additional information and instructions.

E-Verify is a free Web-based system that allows participating employers to electronically verify the employment eligibility of newly hired employees.  The program electronically compares new employee information taken from the Employment Eligibility Verification Form (i-9) against more than 425 million records in the Social Security Administration's database and more than 60 million records in the Department of Homeland Security's immigration databases.

For more information on the E-Verify program:
Read this information at the E-Verify Web site.

Don't get the Border-crossing Blues!
Immigrant rally
Beginning January 31, 2008, U.S. Citizens who enter the U.S. from Canada, Mexico, Bermuda or the Caribbean via land or sea will need to supply proof of citizenship.

In order to facilitate this process, the Department of State will begin accepting applications for the new U.S. Passport Card beginning on February 1.  

Read this for more information on the new U.S. Passport Card

And go here to see what you need to know when crossing the border.

Read this press release from the U.S. Department of State on the new passport fee schedule starting Feb. 1, 2008.

Presidential Candidates On Immigration Reform
Immigration - Statue of Liberty - Words
Democratic Presidential Candidates

Senator Barack Obama:  Obama voted for the Senate immigration overhaul bill to strengthen border controls, create a guest-worker program and legalize the millions of foreign workers already in the United States.  He has also backed the Secure Fence Act, and has co-sponsored a bill to allow states to offer illegal immigrants in-state tuition.

Senator Hilary Clinton: In 2006, Clinton voted for an immigration overhaul bill that would have legalized millions of immigrants in the U.S.  She has also supported a bill to create 700 miles of border fencing and co-sponsored a bill to help qualifying illegal immigrants pay in-state college tuitions and eventually gain permanent status.  She also backed a proposal that would have legalized some farm workers.

Republican Presidential Candidates

Mike Huckabee: Huckabee calls for greater border security and says the government needs to track immigrants with more efficiency.  As governor of Arkansas, Huckabee condemned legislation that would have forced state agencies to report people suspected of being illegal immigrants.

John McCain: McCain believes that securing the borders should be first priority before legalizing immigrants.  In 2006, he co-sponsored a bill that would have legalized millions of immigrants in the U.S., strengthened border control and created a guest-worker program.  He recognizes the economic values of immigrant workers, and he supports a 'sensible' guest-worker program for workers who are in the country without legal status.  McCain also calls for stronger penalties for those who hire undocumented workers.  

Ron Paul: Paul has called for greater border security and has publicly denounced the policy of granting citizenship to babies born in the U.S, regardless of their parent's legal status.  He also opposes legalizing immigrants already in the U.S.  

Mitt Romney: Romney has called for a mandatory employment verification system to check legal status.  He also condemns the Senate's immigration bill as "amnesty," arguing that immigration legislation sho9uld not allow "illegal immigrants to stay in the country indefinitely."  As a governor, Romney authorized state police to be trained to enforce federal immigration laws, although his successor canceled the program.  Romney vetoed a bill that would have allowed illegal immigrants to pay in-state tuition.  Romney also opposes allowing illegal immigrants to have driver's licenses.  

For more information on the presidential candidates view on immigration:
Read this article from NPR.

Petty Crimes Could Lead to Deportation for Some Aliens
A minor criminal offense for a U.S. citizen could mean a felony and deportation for aliens, both legal and illegal, according to immigration lawyer James Kelly.

Kelly, an immigration lawyer based in Reno, NV, said a misdemeanor to a criminal court could be grounds for removal from the United States.

He said it is not the serious crimes, but the little nuanced crimes that are causing problems with immigration.  He said attorneys need to identify their client's legal status immediately, and differentiate between illegal immigrants, and those with student visas and those with green cards.

Penalties, including deportation, depend on how long someone has been in the U.S. and the nature of the offense.  He said any crime involving drugs; the person is going to be removed from U.S. soil.

He discussed cases where a legal alien applied for citizenship only to find that a minor drug charge that the person received more than 20 years prior qualified him for deportation.

Kelly said a court or jury normally determines conviction, but immigration law allows convictions on the admission of just relative evidence.  

For more information on small crimes turning big for aliens:
Read this article from The Record-Courier.

Grassroots Organization Rallies Immigration Community to Action
Immigration Voice, a nonprofit organization, is rallying the immigration community to write letters to President Bush so that the voices of immigrants can be heard.

The Campaign for Administrative Fixes, a name coined for the grassroots effort, are requesting the following:

  • Recapture the unused immigrant visa numbers to ensure that 140,000 green cards are in fact issued each fiscal year, as required by law.
  • Expand to generously interpret the term "same or similar" under the law to grant even greater job flexibility for those whose adjustment of status I-485 applications are pending.
  • Allow the filing of adjustment-of-status (Form I-485) applications, even when an immigrant visa number is not available, so that I-485 applicants can obtain EADs, APs, and enjoy job flexibility.
  • Implement the existing interim rule to allow for the issuance of a multi-year Employment Authorization Document and Advance Parole.
  • Allow visa revalidation in the U.S., rather than having families and individuals are stuck abroad for weeks or months during consular reviews of cases.
  • Reinstate premium processing of Immigrant Petitions.
Immigrants Voices is no stranger to initiating viral campaigns.  They were responsible for coordinating hundreds of floral deliveries to USCIS Director Emilio Gonzales in response to the 485 crises in July 2007.

For more information on the Campaign for Administrative Fixes:
Read this article from the Immigration Voice website.


E-Learning, the Viable Solution for a Nursing Education?
Parade Magazine, the ubiquitous publication offered weekly in more than 400 Sunday Newspapers across the United States, recently ran a story on the nursing shortage in the U.S. and a potential solution to the growing issue.

According to Parade Magazine, the problem with the nursing shortage stems from a lack of schools, instructors and classrooms available to potential students.  Parade estimated that nearly 42,000 nursing applicants were turned away from nursing schools last year alone.  The trend is forcing hospitals to hire foreign nationals to fill critical positions in nursing homes, hospitals and health agencies.

A possible solution, E-learning.  aQuire Training Solutions has begun developing the new program, beginning at the most basic level, the Certified Nursing Assistant.  The online courses involve the student in a participatory, learner-directed style, where the individual is controlling his or her learning completely, the pace of learning, the environment and flow of content.  Learning modules such as games, real-life scenarios and emotional content are used to teach the e-learner.

Despite the concept, it is not widely accepted as an effective method of learning.  Nursing education is currently defined by hours in the classroom rather than by knowledge and skills developed.

As the Internet and New Media develops, it will be interesting to see how a concept like E-learning might develop.

More information on E-Learning as a viable solution for nursing education:
Read this press release based on the Parade Magazine feature.

REAL ID Final Rule
The Department of Homeland Security has issued a final rule to establish minimum standards for state-issued driver's licenses and identification cards in accordance with the REAL ID Act of 2005.

These regulations set standards for states to meet the requirements of the REAL ID Act, including:

  • Information and security features that must be incorporated into each card.
  • Proof of identity and U.S. citizenship or legal status of an applicant.
  • Verification of the source documents provided by an applicant.
  • And security standards for the offices that issue licenses and identification cards.

This final rule also provides a process for States to seek an additional extension of the compliance deadline to May 11, 2011, by demonstrating material compliance with the core requirements of the Act and this rule.

For more information on the REAL ID Final Rule:
Read this press release from Homeland Security.

"In Focus: Develop A Mentoring Culture" 
Developing your employees is more than just writing "equal opportunity" into your organization's mission statement.  It is more than sending someone to a training class.  It is not just what takes place "upstairs," but in the mailroom as well.  People who are willing to listen from the bottom up, and work with one another to establish meaningful harmony in the workplace requires one key technique: mentoring.

Building a mentoring culture begins with having a mentor to initiate the process.  If you want to establish a mentoring culture within your organization, here are some of the best practices:

  • Set organizational goals and develop a mentoring program based on solid business goals.
  • Find out why talented people you wanted to retain left.
  • Talented employees want exciting opportunities and daily challenges to help them develop - keep your employees interested in working for you.
  • Develop people to their fullest potential with challenging projects and assignments.  
  • Foster mentoring for women and minorities.
For more information on how to develop a mentoring program in your office:
Read this article by Judith Lindenberg, a human resources consultant.

What's On Your Mind?
Talk To Us!We'd like to hear from you, our readers -- tell us what you'd like to read about in the Immigration Solutions Newsletter!  Do you have any questions you'd like one of our attorneys to answer?  Don't be shy - send your questions as well as your ideas to

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We at Immigration Solutions make it a point to keep you informed of every change that happens pertaining to U.S. immigration policy and law.  Immigration Solutions is comprised of a network of highly experienced Immigration Case Managers and Paralegals, working in association with licensed, U.S. Attorneys and Certified Specialists in the field of immigration and nationality law.  Through an affiliate office, we also provide our clients with global migration consulting services and global work permits. We have a depth of experience with complex business visas for investors, multinational managers, outstanding individuals in the areas of athletics, business, science and the arts, visa petitions on behalf of nurses and allied healthcare professionals and PERM Labor Certification.  We are set up to conveniently work on your behalf throughout the USA and abroad.

You may contact our office to schedule a one-time free consultation with one of our attorneys at no further obligation. We welcome your comments, questions and suggestions at all times.  We would be pleased to send you a copy of our brochure, our fees and respond to any other inquiry that you might have.
Leslie Davis
Founder & CEO
Immigration Solutions
Phone: 562.612.3996