REVOCATION OF H4 EAD WOULD IMPACT MANY INDIA BORN PROFESSIONAL COUPLES

On February 22, 2019, the Department of Homeland Security submited to the White House, its proposed rule for the termination of the regulation which provides for the Employment Authorization Document for H4 spouses of H-1B workers who have approved I-140 petitions, but are prevented from concluding their green card cases due to the per-country limitation. The provisions of that proposed rule have not been released, so it is not yet known how DHS will address those persons who currently hold unexpired H4 EAD's. Also, it is expected that the rule will likely be challenged in federal court litigation, and it is unknown whether implementation of the rule may be stayed or enjoined by a federal court. In any event, many persons who hold the H4 EAD may wish to consider changing to H-1B status, or other nonimmigrant status that provides for work authorization, where that option is available.

This development will likely adversely affect many H-1B/H4 couples who currently rely on two incomes to support their families. In our practice we represent several physicians who are engaged in medical residency or fellowship training, who are relying on the H4 EAD. Some programs only allow their residents and fellows to train in J-1 status. If a resident or fellow loses his or her H4 EAD prior to completion of a program and if the program will only sponsor the resident or fellow for J-1, the physician could experience interruption or termination of their post graduate medical training due to unavailability of work authorization status. In some cases, even the J-1 could be out of reach to an H4 dependent who has previously been sponsored for permanent residence case.

Can USCIS Limit Post-6 Year Extensions of H-1B?

There have been some recent media reports, indicating that the USCIS is considering measures to limit post-6 year extensions of H-1B status in the United States. I tend to think that there is little the USCIS can do to limit these extensions, since they are the creation of Congressional statute or law, and cannot be repealed, except by Congress.

Basic H-1B law provides that workers are only eligible for 6 years of H-1B presence in the United States, after which they must depart the U.S. for one-year, before they can again become eligible for a new 6-year period. There are two exceptions to the 6-year limit:

Section 104(c) of the American Competitiveness in the 21st Century Act (AC21), provides that an H-1B "may" request an extension, and the Attorney General (now succeeded by the USCIS) "may" extend H-1B status beyond 6-years, if the H-1B is the beneficiary of an approved I-140 petition, and would otherwisse be able to adjust status to permanent residence, except for the non-availability of a visa, due to per-country limitations. (This is common of many India-born persons who have an approved I-140 in the second and third employment based categories).

Section 106(a) of AC21, states that an H-1B "shall" not be subject to the 6-year limitation, and the Attorney General (USCIS) "shall" extend the status of an H-1B worker, if an application for alien labor certification or I-140 petition has been pending for more than 365 days.

These provisions are vital to the continuation of status for many essential H-1B workers in the U.S. economy. In our rural state, many college professors, medical college faculty, public school teachers and high-technology workers are India and China-born persons, who are stuck in long visa-queues, waiting up to 10 years for the availability of a green card. It makes absolutely no sense to drive these people out of the United States, after the government has determined that their services are either in the national interest of the U.S., or that their skills are in short supply.

Ultimately, there may be little the Trump Adminstration can do to limit these post-6 year extensions of H-1B status. AC21 Sec. 106(a) clearly provides that H-1B employees who have green cards pending for more than 365 days, are not subject to the 6-year limit. Under AC21 Sec.104(c), those who are backlogged due to per-country over subscription, "may" apply for an extension and USCIS "may" grant an extension. USCIS may issue some guidance to exminers, stating that they have discretion to deny applications under this section, but it is unknown what criteria may be provided for exercise of discretion. In any event, exercise of such guidance cannot be unreasonable, and USCIS knows that they can expect much litigation, if they attempt to unreasonably limit this very valuable process.

Our firm will closely monitor any developments in this area and will report of any expected signficant changes.

May H-1B Physicians Own an Interest in the Practice that Employs Them?

Recently, some of my physician clients, who are in H-1B status, have asked whether they can becomepart owners in the practice that employs them. Many foreign physicians in the United States, are working in H-1B status, while they wait to become U.S. permanent residents, and ultimately U.S.Citizens. Any physician who came to the U.S. as a J-1 exchange visitor to engage in post-graduate medical education, and who received a Conrad 30 type waiver of their two-year foreign residence requirement, are required to work at least 3 years in H-1B status, before they can obtain U.S. permanent residence. Due to visa backlogs, many H-1B physicians from India and China may have to wait 7-8 years before they can conclude the permanent residence process, and many of these work in H-1B status.

It is common for H-1B physicians to receive a “buy-in” offer from their employer, especially if their practice is thriving and the employment relationship is beneficial to both employer and physician. Thus, many H-1B physicians want to know if they can enjoy the benefits of ownership in their employer entity.

Due to the nature of the H-1B classification, and USCIS regulations, H-1B employee ownership is not easy, but it is not impossible, under the appropriate circumstances. The H-1B statute and USCIS regulations require that H-1B eligibility depends on a “employer/employee” relationship. USCIS regulations define an employer as an entity that has an:

employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee[1]

To qualify as an H-1B petitioning employer, the employer must retain the control or authority to supervise the activities of the H-1B employee, and it must retain the authority to hire or discharge the H-1B employee.

If an H-1B physician wishes to buy-in to his or her employer, or if he or she wishes to start-up a new entity, which will act as an H-1B employer, it must be clearly and genuinely provided in the corporate by-laws or minutes, that someone other than the H-1B employee will have the authority to hire, fire, supervise and pay the H-1B employee/physician. These elements should also be clearly set out in the H-1B employee/physician’s contract. It is usually wise to provide for a board of directors, independent of the corporate officers, which retains the authority to set the overall policies of the corporation, and which retains the authority to discharge the H1-B employee/physician. The H-1B employee/physician should not serve as a corporate officer or director of the corporation, nor should he/she own a majority of the outstanding shares of stock.

The USCIS has approved H-1B petitions for H-1B employee/physicians, when it has been provided evidence that demonstrates that a true employer/employee relationship exists, between the physician and the petitioning employer.

When setting up these types of arrangements, it is typically necessary to employ both a qualified corporate attorney and an immigration attorney, experienced in employment-based immigration. It is typically wise for each of the parties to employ independent counsel, in the corporate formation or purchase transaction.

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[1] USCIS Adjudicator’s Field Manual, Chapter 31.3(g)(15) (AFM Update AD 10-24)                

On November 20, 2014, President Obama announced to the nation, that he was taking “Executive Action” to address some long standing problems in our immigration system. The President’s announcement was actually the culmination of a nine-month process, during which his policy and legal advisors attempted to examine and define the precise legal scope of the Executive’s authority to make changes in immigration policy and procedure. While it is well accepted that Congress makes the laws regarding immigration, the Executive branch is delegated and charged with administering the law and procedures, by which foreign-born persons are granted legal status, or work authorization, or are removed from the United States under the deportation process. Within the system, the Executive has the authority to grant deferred action, parole, as well as employment authorization and other types of relief from deportation.

Regardless of one’s position on whether President Obama has the authority to make these reforms, or whether he has overstepped his authority, it is clear, that as these changes come to fruition, many families, parents and children, and many skilled foreign workers, and their employers, will be benefited from Executive Action. In general terms, Executive Action will benefit two groups of people, family based immigrants, and employment based immigrants.

Here are the principal points of President Obama’s Executive Action:

·        Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. The age limit will be removed from DACA, so that persons over age 31 will be able to qualify.

·        Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks. It is expected that the new DAPA program will operate in much the same fashion as the existing DACA program, requiring the same fees, and a similar form.

·        Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens,

·        Creating a new “Pre-Registration for Adjustment of Status” procedure, whereby employment based immigrants, who have approved I-140 petitions, may register for and receive many of the benefits of adjustment of status, including work authorization and improved portability of employment, even though they may not have a current priority date. It is estimated that the pre-registration provision could benefit up to 400,000 people, principally Indian and Chinese born high-skilled workers. [1]

The U.S. Citizenship and Immigration Service still must issue policy guidance, and it must prepare administratively for a massive influx of applicants. It is expected that the guidelines will be issued and the programs should be implemented during Spring 2015. Until these guidelines are issued, many of the details of the new programs will not be known.

Anyone who wishes additional information on Executive Action can certainly contact immigration attorneys Gabriela Ungo or Barry Walker, www.walkerungo.com.

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[1] http://www.uscis.gov/immigrationaction

MISSISSIPPI STATE BOARD OF HEALTH ADOPTS IMPROVED CONRAD 30 AND NATIONAL INTEREST WAIVER PROVISIONS

On April 7, 2013, the Mississippi State Board of Health met and approved proposed revisions to the Mississippi Conrad 30 J-1 Waiver Program and Physician National Interest Waiver regulations.

These revisions were proposed after considerable lobbying efforts on the part of numerous Mississippi healthcare employers, that rely on the services of foreign medical graduates to provide medical services to shortage areas in Mississippi. The previous program requirements had proven to be very cumbersome, expensive and fraught with difficulty. The previous 6 month recruitment requirement often resulted in the loss of a prospective candidate. When employers did not have evidence of a national print media ad, appearing within the preceding 6 months, they would be required to place a national print ad, and then were required to wait 6 months to determine if any U.S. physicians responded to the ad, prior to filing the waiver application with MSDH. Foreign physicians seeking employment during the last year of their residency, could not be expected to wait 6 months while the prospective employer completed the recruitment requirements. Consequently, many promising J-1 waiver prospects were lost to Mississippi. A state that ranks 2d in the percentage of population living in a medical shortage area, cannot afford to lose good medical candidates.

For that reason, the recent improvements to the Conrad 30 program are to be welcomed. The new revisions are effective May 15, 2013, and the changes include:

• The recruitment period is reduced from 3 months to 6 months
• For FLEX candidates, the sponsoring facility must show that 30% of its patients come from a nearby HPSA shortage area. The state will require patient origin data
• Documentation of recruitment efforts are somewhat relaxed and evidence may now include:
• Regional and/or national print media ads
• Online ads
• Certified letters to medical schools
• The employer can provide any other evidence that shows recruitment
• There is no specific requirement for community support letters
• The regulations continue to require HIV and tuberculosis screening for the J-1 waiver applicant. Those physicians that test positive for TB must undergo a treatment program.

The Board of Health also approved a much needed change to the Physician National Interest Waiver regulations. Specifically, the regulations no longer contain a requirement that the foreign physician must have practiced in Mississippi for at least 2 years prior to applying for the statutorily required state support letter. The previous 2 year practice requirement essentially destroyed the usefulness of the NIW, because it prevented the NIW physician from applying for adjustment of status during the first 2 years of practice in Mississippi. This deprived physician spouses and family from receiving the work and travel authorization that Congress intended them to have when the NIW program was created in the Nursing Relief Act of 1999.

With the 2 year restriction no longer in place, NIW applicant physicians in Mississippi will be able to immediately obtain the benefits of the NIW, including work and travel benefits for their spouses and family members.

The NIW regulations include the same HIV and TB screening and treatment provisions as appear in the Conrad 30 program.

I applaud the staff of the Mississippi Department of Health, including Ms. Rozelia Harris, for drafting and presenting these revised regulations. These changes should aid the recruitment and retention of foreign medical graduates to medically underserved areas in Mississippi, and they clearly serve the public interest.

Conrad 30 and Physician Access Act of 2013 (S.616) Will Benefit Medically Underserved Communities in the United States

My practice is concentrated in the representation of foreign medical graduates (FMG’s), and the health care employers who rely on these physicians to help provide medical care to medically underserved communities throughout the United States. For the past several years, I have participated as a member of an advocacy team, promoting federal legislation which would remove some of the legal barriers and pitfalls which inhibit the recruitment, placement and retention of FMG’s to some of the neediest communities in our country.

 

On February 20 of this year I traveled to Washington and spoke with several Senate and House staff persons, for the purpose of promoting beneficial legislation. It is beginning to look like our efforts may be coming to fruition. On March 18, 2013, a bi-partisan group of Senators introduced S.616, the “Conrad 30 and Physician Access Act”. This proposed legislation contains several features which would improve the legal environment for FMG’s. The bill is budget neutral, i.e. it does not require any expenditure of money, and it enjoys bi-partisan support. The bills co-sponsors are, Sen. Amy Klobuchar (D. MN), Sen. Heidi Heidkamp (D. ND), Sen. Jerry Moran (R. KS), and Sen. Susan Collins (R. ME). The bills principal features are:

 

Removes sunset provision of Conrad 30 program, making it a permanent program. It is now scheduled to expire in 2015

 

Exempts National Interest Waiver physicians from the worldwide immigration quotas. This provision would encourage FMG’s to work for five years in an underserved area.

 

Employment Protection Provisions:

 

Would allow an FMG to leave an employer during the 3 year J-1 waiver obligation period, without demonstrating “extenuating circumstances”, merely by agreeing to serve an additional year of service.

 

Doctors whose employment is terminated would have 120 days to begin new employment in an underserved area before being considered out of status.

 

Increases Conrad 30 numbers: When at least 90% of states (not including states that approved less than 5 waivers) have exhausted the Conrad 30 slots in a given year, all states would be allotted 5 additional slots for the following year.

Academic Medical Centers will be granted 3 waivers per state. These are in addition to the Conrad 30 waivers.

 

J-1 Dual Intent: FMG’s who enter the US as J-1 exchange visitors, in order to undertake graduate medical training, would not be subject to Sec. 214(b), which requires nonimmigrants to prove that they are not intending immigrants.

 

Alternate Visa Status: During the Conrad 3 year service period, FMG’s would be permitted to hold statuses other than the H-1B.

 

National Interest Waiver provisions:

Clarifies that specialists are eligible for the physician national interest waiver.

Allows the NIW for “flex” locations, i.e. locations outside medical shortage areas, but in facilities that serve surrounding shortage areas.

 

I believe these provisions would help alleviate some of the legal impediments to the placement of foreign medical graduates in underserved areas.  We are urging all of our health care employer clients to contact their Senators and to urge support for Senate Bill 616, the “Conrad 30 and Physician Access Act”.

I-Squared Act is Bi-Partisan Effort to Improve Immigration of High-Technology Workers

In recent weeks, much has been reported in the media concerning comprehensive immigration reform. Many people tend to focus on the estimated 11 million undocumented persons in the United States.  But of equal importance to our economy and our international competitiveness is the need to improve and increase the immigration of highly skilled technology workers to the United States.

On January 29, 2013, a bi-partisan group of Senators introduced Senate Bill 169, the “Immigration Innovation Act of 2013 (I-Squared Act)” an important bill that would vastly reform and improve the immigration system for high-technology workers. For years, antiquated U.S. immigration law has impeded the natural migration of high-technology workers, many of whom have been educated in the United States. Many economists and some politicians, across the ideological spectrum, have advocated for increased and eased entry of foreign high-technology workers. Science, Technology, Engineering and Mathematics (STEM) workers help to propel and sustain technology innovation and development. Many foreign-born STEM workers are among the most successful U.S. entrepreneurs. In short, it is now widely recognized that foreign-born STEM workers do not displace U.S. workers, rather they help create and grow U.S. jobs.

The I-Squared Act would improve and increase numbers of both temporary (nonimmigrant) and permanent immigration to the United States.

 In the area of permanent (green card) immigration: I-Squared provides for the recapture and use of employment-based green cards that were not used in previous years; it would exempt dependents of employment-based green card recipients, U.S. STEM advance degree graduates,  persons of extraordinary ability, and outstanding professors and researchers from the 140,000 annual cap. The law would provide for the roll-over of unused employment-based green cards to the following fiscal year so as to avoid the need to recapture these in the future, and it would eliminate the annual per-country limits for employment-based green cards and raise per-country caps for family-based green cards.

In the area of H-1B (temporary high-skilled workers requiring at least a bachelor’s degree): The proposed I-Squared law would increase the H-1B annual numerical limitation from 65,000 to 115,000, and it would establish a market-based H-1B escalator, that would adjust up or down to the demands of the economy. The law would uncap the existing U.S. advanced degree cap exemption (there is currently a cap exemption for the first 20,000 U.S. advanced degree holders per year), and it would authorize employment for dependent spouses of H-1B visa holders.

I-Squared would also unburden F-1 foreign students by providing for “dual intent”, i.e. the intent to study temporarily in the U.S., while also pursuing lawful permanent immigration. The “un-abandoned residence” requirement has long hampered and discouraged foreign students who wish to enter the U.S. to study.

Based on our years of representation of high-tech workers and their employers, we instinctively know that there is an enormous amount of pent-up entrepreneurial and innovation energy that lies untapped within the high-skilled immigrant population in the U.S. If I-Squared is enacted, we believe this country will experience a palpable burst of economic and technological advancement. Let’s do more than keep our fingers crossed. We urge everyone to contact their congressmen and senators to urge passage of the bi-partisan “Immigration Innovation Act of 2013”.