The Department of State’s Visa Bulletin for August 2014 notes that cut-off dates for the China-mainland born employment third preference, and third preference “Other Workers,” categories have advanced for the month of August and could do so again for September.
The bulletin notes two reasons for this advance: (1) a decline during the past two months in heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date, and (2) declining number use in the family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year. These developments have resulted in the availability of several hundred numbers for use in the China-mainland born employment third preference category.
During the past two months, the India employment second preference cut-off date also has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit. The bulletin notes that it must not be assumed that this cut-off date will continue to advance at the same pace during the coming months.
“A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be,” the bulletin states.
Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, the bulletin notes, at which time the cut-off date is likely to retrogress significantly.
The Visa Bulletin for August 2014 is available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-august-2014.html.
USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations On July 11, 2014, U.S.
Citizenship and Immigration Services (USCIS) issued a policy memorandum providing guidance on the adjudication of H-1B petitions for nursing positions.
The memo assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo states that it supersedes any prior guidance on the subject and is binding on all USCIS employees unless specifically exempted. USCIS noted that about 12 years have passed since USCIS issued guidance on determining whether a nursing position is a specialty occupation. USCIS decided it was time to update this guidance.
As background, the memo notes that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation. Most registered nurse (RN) positions do not qualify as specialty occupations because they do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those positions.
In some situations, however, a petitioner may be able to show that a nursing position qualifies as a specialty occupation, the memo states. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specialty as the minimum for entry.
The updated guidance notes that the private sector “is increasingly showing a preference for more highly educated nurses.” Among other influences, the American Nurses Credentialing Center’s (ANCC) Magnet Recognition Program recognizes health-care organizations that advance nursing excellence and leadership. Achieving Magnet status indicates that an institution’s nursing workforce has attained a number of high standards, with an emphasis on bachelor’s degrees.
The memo lists some of the nursing positions that may qualify as specialty occupations. The memo notes that having a bachelor’s degree is not, by itself, sufficient to qualify for H-1B classification. A critical factor, the memo states, is whether a bachelor’s or higher degree is normally required for the position. A beneficiary’s credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation.
USCIS noted that it must “follow long-standing legal standards and determine whether the proffered position qualifies as a specialty occupation, and whether a beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed.”
Among other things, the memo notes that if a state requires at least a bachelor’s degree in nursing to obtain a nursing license, a registered nurse position in that state would generally be considered a specialty occupation. No state currently requires a bachelor’s degree in nursing for licensure, the memo notes.
The memo outlines the evidence needed to establish that a position qualifies as a specialty occupation under the “preponderance of the evidence” standard. Among other things, documentation submitted by petitioners often includes the nature of the petitioner’s business; industry practices; a detailed description of the duties to be performed; advanced certification requirements; ANCC “Magnet Recognized” status; clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.
USCIS recognizes the Department of Labor’s Occupational Outlook Handbook (OOH) as an authoritative source on duties and educational requirements. However, the memo notes that it is not always determinative and other authoritative and/or persuasive sources provided by the petitioner will also be considered.
The new guidance memo is available at http://www.uscis.gov/sites/default/files/files/nativedocuments/2014-0711_EIR_Nursing_PM_Effective.pdf.
EOIR interim rule addresses ‘Largest Caseload’ in U.S. history with temporary IJs Following the Obama administration’s decision to increase the number of immigration judges deployed to handle cases related to the influx of undocumented migrants in the U.S. southern border area, the Department of Justice’s Executive Office for Immigration Review (EOIR) published an interim rule effective July 11, 2014, allowing the agency to designate or select temporary immigration judges, with the Attorney General’s approval.
The interim rule notes that EOIR “is currently managing the largest caseload the immigration court system has ever seen.” This is due to “attrition in the immigration judge corps and continuing budgetary restrictions” along with a large number of pending cases, the interim rule notes. Allowing the designation of temporary immigration judges will provide flexibility “in responding to the increased challenges facing the immigration courts.”
A new TRAC report finds that as of the end of June 2014, the number of cases pending in the immigration courts is at an all-time high of 375,503. TRAC’s preliminary figures indicated that the number of cases involving juveniles was 41,640, with more arriving daily.
“As of the end of June 2014, the court backlog for juveniles from Guatemala is the largest with 12,841 cases, closely followed by Honduras (12,696) and El Salvador (12,162),” TRAC noted. According to the TRAC report, the average time for a pending case before an immigration judge is now 587 days.
The interim rule states that temporary immigration judges may include former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to act as temporary immigration judges for renewable six-month terms.
Administrative law judges from other agencies must have the consent of their agencies to be designated as temporary immigration judges. In addition, the Director of EOIR will be able to designate, with the approval of the Attorney General, attorneys who have at least 10 years of legal experience in the field of immigration law and are currently employed by the Department of Justice to act as temporary immigration judges for renewable six- month terms.
The 10 years of experience must be gained after admission to the bar and may be gained through employment by the federal, state, or local government, the private sector, universities, non-governmental organizations, or a combination of such experience.
Characteristics that would qualify a candidate for designation as a temporary immigration judge include the ability to demonstrate the appropriate temperament to serve as a judge; knowledge of immigration laws and procedures; substantial litigation experience, preferably in a high-volume context; experience handling complex legal issues; experience conducting administrative hearings; and knowledge of practices and procedures.
EOIR will provide the training necessary for temporary immigration judges to perform the assigned duties. The Chief Immigration Judge may choose to specify particular types of matters for which each temporary immigration judge will be assigned, consistent with the individual’s training and experience.
Cyrus D. Mehta
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