Foreign nationals who are immediate relatives of U.S. citizens currently in the U.S. seeking to become lawful permanent residents, but who originally entered without inspection, could soon benefit from a change in the waiver application process being proposed by U.S. Citizenship and Immigration Services. On Friday, January 6, 2012, USCIS announced that it intends to develop a framework allowing certain foreign nationals who have accrued unlawful presence in the U.S., and are thus inadmissible without a waiver, to file their waiver applications (Forms I-601) stateside.

This change would significantly reduce the time that U.S. citizens are separated from their immediate relatives, as foreign nationals are currently required to remain outside the U.S. while their immigrant visa application and their waiver application are adjudicated. This USCIS proposal clarified that only foreign nationals who are immediate relatives of U.S. citizen spouses or parents would be able to take advantage of this change. This proposal is not expected to be implemented until the end of this year. We will continue to monitor and report on the progress of this important development.

Background

Immigration law bars certain foreign nationals from being admitted into the U.S. (receiving permanent residence or any other visa) 

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According to a recent decision by the Board of Alien Labor Certifications Appeals (BALCA), the Department of Labor’s appeals body, hospitals wishing to retain International Medical Graduates in their medical residency programs will likely not qualify for foreign labor certification during the residency. On November 21, BALCA issued a consolidated decision with regard to seventeen PERM applications filed on behalf of medical residents by  Albert Einstein Medical Center and Abington Memorial Hospital.  In BALCA’s view, the decision whether to approve or deny the applications turned on whether, in general, medical residency programs may still be considered offers of “permanent employment,” as they have been for the last 25 years or more.

In reaching its decision, BALCA first reviewed prior regulations, DOL memoranda, and caselaw, and found that to date, DOL consistently approved labor certifications for positions in medical residency programs. However, BALCA went on to note the absence of a definition of “permanent employment” in the regulations or prior caselaw – including caselaw specifically approving medical resident labor certification — and chose to fashion a new test for whether any position may be considered “permanent employment” and thus eligible for labor certification.  BALCA announced a three part test for a position to be considered “permanent:”

• There must be an agreement – not necessarily a written contract, but at least an intention on the part of the employer to offer, and of the employee to accept, employment of indefinite duration;
• The position need not be guaranteed to last forever – that is, a position may be “permanent” even if it can be ended by the employer and the employee at some point in the future; and
• To be “of indefinite duration,” the position must have two characteristics.  First, it must be “of lasting duration,” meaning that the person will fill the position for an indefinite period of time – certainly expected to last more than a year, but with no specific ending date, even one that is three or more years away.  Second, there must be an “assurance of continuation of employment,” meaning that the employer must have the capability and intention of providing lasting and continuous employment.

In BALCA’s own words, “[T]he regulatory requirement of an offer of permanent employment is focused on a snapshot of the good faith intention of the employer at the time the labor certification is filed to make an offer of permanent employment – that is, indefinite employment of a lasting and continuous nature – within the expectations of any typical job offer.  An employer that has no intention to continue the employment of the immigrant beyond a set term of years cannot have the requisite intent.” (Opinion at page 72, footnote omitted).

Applying this definition to  medical residencies generally, BALCA found that the employers of medical residents do not generally have the intent to offer permanent employment, but instead only employment for the duration of the residency term. BALCA explained that its newly-adopted definition of “permanent” contemplated the expectation of indefinite employment at the time of the filing of the labor certification.  BALCA then concluded that resident positions do not fit the newly adopted definition of “permanent employment” because medical residency positions are not of “lasting duration” and do not offer an “assurance of continuation.”

Though BALCA ruled that medical residency programs in general may not qualify for foreign labor certifications, it did note that the specifics of the residency programs at Albert Einstein Medical Center and Abington Memorial Hospital were not in the appellate record.  BALCA remanded the labor certification denials back to the Certifying Officer for review of the evidence submitted by the Hospitals that related specifically to these two medical residency programs and for new decisions consistent with the Board’s general findings.

Though the full impact of BALCA’s decision is unknown at this point, it will likely limit medical facilities’ ability to sponsor their International Medical Graduates for permanent residence during their residency.  Abington Memorial Hospital and Albert Einstein Medical Center asserted to BALCA that their intention in recruiting resident physicians was to obtain the services of physicians who would continue on an indefinite basis with the Hospitals after their residencies; BALCA left that issue for the Certifying Officer to address on remand, but in doing so, asserted (with no basis in the record) that post-residency positions were “distinct positions” from the upper year resident positions offered in these applications.

Even prior to this decision, many hospitals were rethinking their strategies for retaining International Medical Graduates in light of the Department of Labor’s reluctance to approve labor certifications during the residency period.  This BALCA decision will cause foreign born physicians to have to rethink their career paths and plans, and hospitals their recruiting and retention strategies.  For further information or consultations on the effect of this decision, please contact your attorney at the Firm.

News reports have summarized the passage by the House of Representatives of HR 3012, the Fairness for High-Skilled Immigrants Act, by 389 votes for to 15 votes against.  The bill now goes to the Senate, where supporters had hoped the bipartisan support in the House would help obtain quick passage.

What Problem is HR 3012 Addressing?

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries.

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Late Wednesday, November 23, 2011, USCIS Headquarters announced that it had received enough H-1B petitions to fulfill the H-1B quota for the fiscal year ending September 30, 2012.  As of November 22, 2011, petitions for “new employment” of H-1Bs, that is, for employment of a person who is not yet in H-1B status for another cap-subject employer, will not be accepted again until April 1, 2012.  Those petitions received after April 1, 2012 must request employment starting October 1, 2012, so that they will be subject to next year’s cap (FY 2013).

Please note that H-1B1 petitions for nationals of Chile and Singapore can still be approved due to free trade agreements with those countries, and that “cap exempt” employers (such as universities and nonprofit research organizations) can continue to seek H-1B status on behalf of their employees. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap.

The “final receipt date” for H-1B purposes is November 22, 2011.  Regulations now provide that all H-1B petitions received by USCIS on or before November 22, 2011 have been submitted “under the cap,” but all H-1B petitions received by USCIS on or after November 23, 2011 will be rejected, as the cap was reached on November 22, 2011.

Klasko Law is contacting employers about options for those beneficiaries of H-1B petitions that did not make the cut-off for the cap.

Additionally, as we reported in March 2011, USCIS previously sought public comment on the proposed “H-1B Pre-Registration Rule,” which would allow an employer to register online and wait for an H-1B number before filing the full H-1B petition with supporting documentation with USCIS.  USCIS has stated that this electronic registration system will not go into effect until a final rule is published and becomes effective. If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.  As of now, however, USCIS has not given any indication of when the “Pre-Registration Rule” will become final and effective.  Klasko Law will notify employers if and when a final rule is published that mandates electronic pre-registration with USCIS for cap-subject H-1B petitions.

Two important developments that will have a significant impact on the future of EB-5 will be occurring within the next month.

We expect that USCIS will begin phased implementation of the proposal to make the EB-5 process more expeditious and user friendly no later than September.  The phases are expected to include premium processing for regional centers and investors in “shovel ready” projects and changing the adversarial process to a consultative process, with regional center developers being afforded the right to a hearing with expert economists and business analysts to resolve any issues.

The second development is the scheduling on September 8 of an EB-5 hearing by the Chairman of the House of Representatives Judiciary Committee, Congressman Lamar Smith.  Congressman Smith will be a key figure in the attempts to convert the EB-5 regional center program from a pilot program to a permanent program.  Some indications of the Congressman’s position on this issue may be gleaned from the September hearing. 

By mid-September, there may well be progress on both of these important developments in EB-5 practice.