Epstein Becker Green colleagues Robert S. Groban, Jr. and Matthew S. Groban provide an update to the health care industry in the Immigration Alert: September 2014, including an update on the Sixth Circuit Expanding the Liability of Health Care Employers for Sponsorship Costs.

Based on the Kutty decision, health care employers can expect more aggressive enforcement activity in connection with their employment of foreign nationals (“FNs”) generally and foreign medical professionals sponsored for H-1B classification and J-1 waivers of the two-year foreign residence requirement that many J-1 residents face.  For the full client alert, click here.

By Robert S. Groban, Jr. and Matthew S. Groban

Below are three important developments in health care-related immigration that we need to bring to your attention:

1.     Valid Health Care Certificates Are Required for Immigration Applications: Many health care workers are under the impression that the health care certificates they used to enter in valid nonimmigrant status are valid indefinitely and need not be renewed to support renewal or green card applications. The USCIS, however, requires FNs to submit a valid health care certificate with each application, both nonimmigrant renewals and green card applications, until the FN is admitted to lawful permanent residence. As a general rule, these certifications are valid from three to five years, but can take several months to renew. For this reason, it is important for employers to make sure that the FNs continue to have a valid health care certification so that they can remain in status without an unanticipated interruption.

2.     USCIS Requires a Master’s Degree or Foreign Equivalence for Physical Therapists: Health care employers sponsoring physical therapists for permanent residence often seek to qualify them for the employment-based second (“EB-2”) preference to speed up the process. To qualify for the EB-2 preference, however, the sponsored physical therapy position must require a master’s degree (or foreign equivalent) or, alternatively, a bachelor’s degree plus five years’ progressively responsible experience, and the sponsored physical therapist must satisfy this requirement. Many sponsored physical therapists have obtained degrees in five-year physical therapy programs that standard credentials evaluations equate to the EB-2 qualifying master’s degree.

The USCIS, however, has been challenging these evaluations because it does not believe that degrees from these programs equate to the qualifying master’s degree.  In making this assessment, the USCIS has indicated that it relies almost exclusively on the American Association of Collegiate Registrars and Admissions Office’s EDGE database, which does not support the claim that these programs issue degrees equivalent to a U.S. master’s degree. Before preparing these applications, therefore, health care employers must first secure an EDGE evaluation to be certain that the sponsored FN has a degree that satisfies the USCIS requirements.

3.     Proper FN Nurse Priority Date Should Be Verified: As we have noted in previous alerts, most employment- and family-based immigration is limited by annual quotas. These quotas have resulted in significant delays for employers sponsoring FNs for immigrant visas so that they can come here to work as registered nurses (“RNs”). Many RNs were sponsored years ago and no longer have job offers from the employer that filed their original I-140 petition. To immigrate to the United States now, these RNs must find another employer to file a new I-140 petition on their behalf. However, it is important to note that they retain their place in the immigration line (i.e., a priority date) that attached to the initial I-140 petition, unless it has been revoked for fraud or misrepresentation.

When these new I-140 petitions have been filed, however, the USCIS has not been consistent in granting the new employer’s request to retain the sponsored RN’s original priority date. For this reason, new employers in this situation must verify that the new I-140 approval notice accurately reflects the proper priority date. If there is a discrepancy, the employer should immediately contact the USCIS to correct the error. It is critical to effect this correction before the file is transferred to the National Visa Center so that the immigrant visa will be issued in a timely manner within the appropriate eligibility period.

 At Epstein Becker Green, we have significant experience supporting clients in the health care sector with their immigration needs. Please contact us if you need guidance on these or any other immigration issues.

 

By Robert S. Groban, Jr. and Matthew S. Groban

On March 24, 2014, the USCIS Ombudsman reported that the agency has been improperly denying employment authorization to the dependents of J-1 doctors who are participating in the Conrad 30 program. Normally, foreign physicians who pursue medical training in the United States in J-1 status must leave the country and return home for at least two years when they finish their residency programs. The Conrad 30 program waives this two-year foreign residence requirement and allows those J-1 physicians selected for the program to change their status to H-1B (exempt from the cap) and apply for a green card if they spend at least three years practicing in an underserved area.

Prior to 2011, the USCIS routinely allowed dependents of J-1 physicians in the Conrad 30 program to change their status from J-2 to another work authorized status if they independently qualified. Beginning in September 2013, however, the USCIS began denying requests from J-2 dependents to change their status to anything other than H-4. According to the Ombudsman’s report, the USCIS’s change in policy is inconsistent with the Conrad 30 waiver program in several respects. First, it ignores the fact that the USCIS approval for J-1 physicians selected for the Conrad 30 program applies to both the J-1 physician and all family members. Second, the USCIS’s action is inconsistent with guidance by the U.S. Department of State (“DOS”) on the same issue, which includes all family members as part of the Conrad 30 waiver approval. Finally, the USCIS’s short-sighted action ignores the serious policy implications that may result. The Conrad 30 program is designed to attract J-1 physicians to practice in medically underserved areas. These physicians usually are compensated far less due to the lack of financial resources in these patient populations. In this context, rules that restrict the careers of spouses may be a significant factor in the J-1 physician’s decision to relocate. Under the Affordable Care Act, the federal government is placing increased reliance on these types of programs to expand the delivery of medical services across the country. In this context, this USCIS rule creates the type of additional obstacle for J-1 physicians that may further limit the availability of care in already underserved areas.

At Epstein Becker Green, we have significant experience supporting clients in the health care sector with their immigration needs. Please contact us if you need guidance on these or any other immigration issues.