Current Events

USCIS Denies National Interest Waiver (NIW)Petitions for Physicians not in Physician Scarcity Areas

By Zack Johnson

Foreign nationals seeking green cards in the employment-based second preference classification customarily require sponsorship by an employer who is willing to go through the labor certification process and file an immigrant visa petition on their behalf. Since the enactment in 2000 of The Nursing Relief Act, however, physicians have had the option of bypassing this requirement if they agree to work full time for an aggregate of five years at a Veterans Affairs health care facility or in an area (or areas) designated by the Secretary of Health and Human Services (HHS) as a Medically Underserved Area, Primary Medical Health Professional Shortage Area, or Mental Health Professional Shortage Area. Such physicians are required to obtain an attestation from a Federal agency or the department of health of their state of employment certifying that their services are in the public interest, after which they are able to file an immigrant visa petition as self-petitioners. This is all covered in the regulation at 8 C.F.R. § 204.12(a), which outlines the requirements for physicians seeking waivers of the labor certification requirement under Section 203(b)(2)(B)(ii) of the Immigration and Nationality Act.

There are compelling reasons why some physicians prefer the NIW over the labor certification. Some physicians point to the fact that they can establish their priority date more quickly through the NIW, and many others appreciate how the NIW gives them the ability to change employers without having to start the green card process from scratch. These physicians and their immigration attorneys received a collective punch to the gut, however, when the USCIS Texas Service Center started denying NIW petitions in 2015 for sub-specialist physicians whose work locations are not in so-called “Physician Scarcity Areas.” Suddenly, attorneys were forced to advise their sub-specialist clients on the risks of filing a petition that would have been considered a sure thing not long before.

A recurring theme among the denials reveals that they were borne of an interpretation of the NIW regulations that requires sub-specialists to work in areas designated as having shortages of providers in their specific field of practice. On the surface, this is not so far-fetched. It is stated in the regulation at 8 C.F.R. § 204.12(a) that the physicians’ services should be “in a medical specialty that is within the scope of the Secretary’s designation” for the area. The problem with this interpretation is that HHS is not in the business of designating areas as having shortages of specific medical specialties. The Physician Scarcity Area designation was once used for this purpose, but that designation was discontinued in 2008 when HHS’ Centers for Medicare and Medicaid Services ended its PSA bonus payment program.

Fortunately, the Director of the USCIS Texas Service Center certified one of the NIW denials to the Administrative Appeals Office. After reviewing the case, the AAO withdrew the Director’s decision and approved the petition. But the good news does not stop there. The AAO’s decision has since been designated by a USCIS policy memorandum as an adopted decision, and all USCIS employees will be bound to use the decision as policy guidance moving forward.

 

Matter of H-V-P-: A Major Physician National Interest Waiver Victory

By Adam Cohen

A recent Administrative Appeals Office (AAO) decision and USCIS policy memorandum adopting that decision have thankfully shut the door on what could have been a frightening new trend for the physician national interest waiver (PNIW) green card.

Several months ago, the USCIS Texas Service Center denied a PNIW-based green card petition for a specialist providing services in a Health Professional Shortage Area (HPSA) and Medically Underserved Area (MUA).  In doing so, it found that specialists must commit themselves to work for five years specifically in a Physician Scarcity Area (PSA), a designation that no longer exists.  The Texas Service Center’s reading of the relevant PNIW law and policy would have essentially rendered the PNIW unavailable to specialist physicians.

To the credit of the Texas Service Center, following denial, it certified the matter to the AAO for review.  In its decision (Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016)), the AAO noted that with the Nursing Relief Act, which created the mandatory PNIW, Congress intended to improve access to medical care.  In exchange for a waiver of the stringent labor certification process with the Department of Labor, the physician would practice full time in an area designated by the Department of Health and Human Services (HHS) as “having a shortage of health care professionals.”  In addition to this requirement, the physician would have to obtain a letter from a federal agency or state department of health affirming that the physician’s services in the area were in the public interest.  The section of the Immigration and Nationality Act, which implemented the Nursing Relief Act, states that the PNIW should be granted to “any alien physician” meeting the above requirements, and no reference was made to limit this process to primary care physicians.

Federal regulations added the requirement that the physician’s area of medical specialty be within the scope of the HHS designation.  However, HHS does not single out specialty areas of medical practice in its HPSA and MUA designations.  The PSA designation did reference various specialties, but the program ended in 2008.  In analyzing both the physician’s and USCIS’s positions, the AAO placed importance upon the following:

The spirit of the legislation Congress enacted to improve access to medical care in underserved areas.

The USCIS policy memorandum in the wake of the 9th Circuit Schneider decision. USCIS’s memorandum expanded the fields of medical specialty that would qualify physicians for the PNIW process, accepting petitions on behalf of physicians who provide specialty care.

Years of USCIS practice, since 2007, to approve PNIW-based petitions for specialists working in HPSAs and/or MUAs.

The sunset of the PSA program, making PSA designations no longer effective or informative as to where specialty care is needed.

The AAO decided that medical specialists, in addition to primary care physicians, who agree to practice in any area designated by HHS as having a shortage of health care professionals may be eligible for PNIWs. On March 9, 2016, USCIS designated Matter of H-V-P- as an adopted decision and directed USCIS officials to follow its reasoning in similar cases.  This is a major victory for physician immigration advocates, as well as our clients.  We would like to especially congratulate Attorney Charles Wintersteen of Chicago who successfully presented this case to the AAO.

 

Managing Changes During Physician Employment in H-1B Status

By Elissa Taub

Sometimes after an international medical graduate (IMG) begins work, changes need to made to the terms and conditions of the physician’s employment. The H-1B regulations state that an amended petition must be filed with USCIS to report any material change(s) in the terms and conditions of employment, but it is not always clear what constitutes a material change. For this reason, it is important for employers to consult immigration counsel before changing any terms and conditions of employment for IMGs. This article will briefly address three common changes in employment that occur for physicians and how those changes must be addressed for physicians in H-1B status.

Changes in Location

It is common for employers to seek to move a physician’s work location or to add additional locations to his or her coverage area. Most changes in worksite location require an employer take some action with regard to the physician’s H-1B status before the doctor can start work at the new location.

Based on a recent court decision, USCIS has adopted a relatively clear rubric for determining how to effect a change in worksite location for an H-1B employee. Where the new location is located in the same metropolitan statistical area (MSA) as the original worksite location(s), the employee may start work at the new location once the employer has completed a posting of the Labor Condition Application (LCA) that formed the basis of the employee’s H-1B petition. The posting must be made in exactly the same way as the initial LCA posting that was made when the initial H-1B was being prepared. On the other hand, where the new location is not located in the same MSA as any initial worksite location, the employer must file an amended H-1B petition with USCIS before the physician may begin work at the new location.

MSAs are designated by the US Office of Management and Budget (OMB) to designate geographical regions with relatively high population density at their core and close economic ties throughout the area. The US Department of Labor (DOL) designates prevailing wage rates on a MSA-level basis. Sometimes an MSA is designated for a single county, but in other instances, a single MSA may cover multiple counties and might even cross state lines. For this reason, it is important to consult immigration counsel before adding or changing an IMGs work location.

An exception to these rules exists where a physician will travel to a particular location fewer than 30 times in a year and where no LCA has been filed for that location for the physician or any other employee. In those circumstances, the work is so intermittent that the Department of Labor has determined that no additional LCA or H-1B amendment need be filed.

Finally, for physicians who might be in H-1B status pursuant to a J-1 waiver based on the physician’s commitment to work full-time in an underserved area for three years, it is imperative that the physician continue to work at least 40 hours per week in accordance with the waiver application. If the employer needs the physician to complete his/her waiver service at an entirely new location or if the new location will comprise at least a portion of the physician’s 40 hours per week of waiver service, then it is advisable to notify the state or federal agency that supported the waiver and to file an H-1B amendment even if the new location is in the same MSA as the prior location(s). Taking such action will help to ensure that both the interested government agency and USCIS consider the physician to be in compliance with his/her waiver commitment.

Changes in Salary

Many physicians are compensated based on their productivity. While it is advisable for an H-1B physician’s employment agreement to state that the physician’s compensation never will fall below the prevailing wage, what happens when the physician’s salary will change in accordance with the compensation plan?

An employer may increase an H-1B physician’s salary without taking any immigration action. Increases are not viewed as materials changes in the terms and conditions of employment, in part, because an increase ensures that the physician will continue to be paid at least the prevailing wage. The exact opposite is true for decreases in salary; an employer must file an H-1B amendment before decreasing an H-1B physician’s compensation. The amendment will report the new compensation level and will continue to ensure that, despite the decrease, the physician still will be paid at least the prevailing wage, in accordance with the H-1B requirements.

Changes in Work Duties

Every H-1B petition must specify the standard occupational code (SOC) for the position in which the employee will work. If a physician’s job duties will change to such an extent that a new SOC code will be implicated, then the employer should file an H-1B amendment. Similarly, if a change in job duties might be covered by the same SOC code as previously was used but the employee’s job duties will change to such an extent that the employee now will be engaged in a different position, an amendment might be necessary. This is another situation that will require close work with an immigration attorney.

 

Guidance for Students on 24-Month F-1 STEM OPT Extension

By James Hollis

Key Facts

• A new 24-month STEM OPT Extension rule goes into effect on May 10, 2016.
• The STEM OPT extension may be an effective tactic to a student not being selected in the FY-2017 H-1B Visa Lottery.
• Eligible students working on 17-month STEM OPT extensions may apply for an additional seven months of employment authorization between May 10, 2016 to August 8, 2016 (the “transition period”).
• To qualify for a 7-month extension, students must apply during the transition period, within 60 days of the DSO entering the student’s eligibility for the extension into SEVIS and have at least 150 days of employment authorization remaining at the time the I-765 “Application for Employment Authorization” is filed with USCIS.
• Students on 17-month STEM OPT with EADs expiring between October 7, 2016 and January 5, 2017 could lose eligibility for the 7-month extension if the I-765 is not filed with at least 150 days of employment authorization remaining.

 Background

On May 10, 2016, a new Department of Homeland Security regulation goes into effect creating a 24-month extension for F-1 STEM OPT to replace the 17-month extension that was previously available. As of May 10, 2016, students applying for a STEM OPT extension will have their applications adjudicated using the new 24-month STEM OPT standard. Students whose STEM OPT extension request is pending on May 10, 2016 will be issued a Request for Evidence (or RFE) to provide the additional information required by the new 24-month STEM OPT standard. Students who are currently working on a 17-month STEM OPT extension may be eligible for an additional seven months of STEM OPT. To be eligible, they must have the training opportunity approved by their DSO (using Form I-983) and have at least 150 days of employment authorization remaining at the time their I-765 “Application for Employment Authorization” is received by USCIS. They also must apply for the 7-month extension during the “transition period” between May 10, 2016 and August 8, 2016.

 General Eligibility Requirements

In order to qualify for the 24-month STEM OPT extension, a student must be currently working

in a period of post-completion OPT and must hold a bachelor’s degree or higher degree in an eligible STEM field (Science, Technology, Engineering, and Math) from an accredited SEVP-certified school. The student must be seeking to engage in practical training for a minimum of 20 hours per week through an employer that participates in USCIS’s E-Verify program. Also, the student and the employer must create and submit a formal training plan on Form I-983 to the student’s DSO for approval prior to applying for an F-1 STEM OPT extension with USCIS.

The training plan must explain how the practical training opportunity is directly related to the student’s qualifying STEM degree. It must identify goals for the practical training opportunity, including specific knowledge, skills or techniques that will be imparted to the student and explain how those goals will be achieved through the work-based learning opportunity with the employer. The training plan must also describe a performance evaluation process and the methods of oversight and supervision of the student. Note that the training plan will be evaluated by the student’s DSO for completeness, meaning that the DSO will ensure that the Form I-983 is signed and addresses the regulatory requirements of the training program. An ICE tutorial on drafting Form I-983 is available here.

Additional Information on the 24-month STEM OPT Extension

• Allows for two lifetime STEM OPT Extensions. The second STEM OPT extension must be based upon a degree completed at a higher educational level than the first STEM extension.
• Students participating in an initial 12-months of post-completion OPT based on a non-STEM degree can use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as both degrees were received from currently accredited educational institutions and the practical training opportunity is directly related to the previously obtained STEM degree.
• Students must complete annual self-evaluations and obtain the employer’s signature.
• The new rule retains the 90 days of unemployment (during the initial OPT authorization) and adds an additional 60 days of unemployment for students authorized for a 24-month STEM OPT extension (for a total of 150 days of unemployment allowed during the 36 months of OPT).
• The rule requires STEM OPT students to report to their DSOs any name or address changes, as well as any changes to their employers’ names or addresses. Students also must verify the accuracy of this reporting information periodically.

Action Steps for Students

Students are responsible for getting the process with their employer started. If you don’t know where to start, contact your DSO for information and advice on having a conversation with your employer. While students are unable to complete Form I-983 on their own, they must fill out the student portion which includes information about their identity and academic history. Students must work with their employer to effectively convey details of the training opportunity and how that training opportunity meets the requirements of the regulations. Once the details are worked out, the student and employer must sign the Form I-983 and submit it to their DSO for approval. Once the DSO approves the I-983, the student must file the STEM OPT extension package themselves unless their school files STEM OPT extensions for their international students.

A 24-month F-1 STEM OPT extension package should contain the following:

• Completed and signed Form I-765
• Check or money order for $380, payable to “Dept. of Homeland Security”
• 2 color, U.S. passport-style, photographs (see “Guidelines” below) – write name and SEVIS ID on back
• Copy of the front and back of your current OPT card
• Copy of new I-20, with recommendation for OPT extension (keep the original I-20)
• Copy of all previous I-20s
• Evidence that your degree meets the STEM degree/major requirements – ONE of the following must be submitted with your application:
• Official transcript (Request from Registrar’s Office)
• Copy of the diploma that shows your degree level and program of study
• Copy of your current I-94 printout
• Copy of your passport biographic information page (and any renewal pages)

If you will submit directly to USCIS, please be sure to do the following:

• Be sure to sign your STEM OPT I-20 form when you receive it from the DSO.
• Make a copy of the entire application before you submit it to the USCIS.
• Submit the application to the USCIS Lockbox with jurisdiction over the address you list on the I-765 form. Filing jurisdiction information can be found at: https://www.uscis.gov/i-765

 

Guidance for Employers on 24-Month F-1 STEM OPT Regulation

By James Hollis

 Key Facts

• A new 24-month STEM OPT Extension rule goes into effect on May 10, 2016.
• The STEM OPT extension may be an effective tactic to respond to an employee not being selected in the FY-2017 H-1B Visa Lottery.
• Eligible employees working on 17-month STEM OPT extensions may apply for an additional seven months of employment authorization between May 10, 2016 to August 8, 2016 (the “transition period”).
• To qualify for a 7-month extension, employees must apply during the transition period, within 60 days of the DSO entering the employee’s eligibility for the extension into SEVIS and have at least 150 days of employment authorization remaining at the time the I-765 “Application for Employment Authorization” is filed with USCIS.
• Employees on 17-month STEM OPT with EADs expiring between October 7, 2016 and January 5, 2017 could lose eligibility for the 7-month extension if the I-765 is not filed with at least 150 days of employment authorization remaining.

Background

On May 10, 2016, a new Department of Homeland Security regulation goes into effect creating a 24-month extension for F-1 STEM OPT to replace the 17-month extension that was previously available. As of May 10, 2016, employees applying for a STEM OPT extension will have their applications adjudicated using the new 24-month STEM OPT standard. Employees or new hires whose STEM OPT extension request is pending on May 10, 2016 will be issued a Request for Evidence (or RFE) to provide the additional information required by the new 24-month STEM OPT standard. Employees who are currently working on a 17-month STEM OPT extension may be eligible for an additional seven months of STEM OPT. To be eligible, they must have the training opportunity approved by their DSO (using Form I-983) and have at least 150 days of employment authorization remaining at the time their I-765 “Application for Employment Authorization” is filed with USCIS. They also must apply for the 7-month extension during the “transition period” between May 10, 2016 and August 8, 2016.

 General Eligibility Requirements

In order to qualify for the 24-month STEM OPT extension, an employee must be currently working

in a period of post-completion OPT and must hold a bachelor’s degree or higher degree in an eligible STEM field (Science, Technology, Engineering, and Math) from an accredited SEVP-certified school. The employee must be seeking to engage in practical training for a minimum of 20 hours per week through an employer that participates in USCIS’s E-Verify program. Also, the employee and the employer must create and submit a formal training plan on Form I-983 to the employee’s DSO for approval prior to applying for an F-1 STEM OPT extension with USCIS.

The training plan must explain how the practical training opportunity is directly related to the employee’s qualifying STEM degree. It must identify goals for the practical training opportunity, including specific knowledge, skills or techniques that will be imparted to the employee and explain how those goals will be achieved through the work-based learning opportunity with the employer. The training plan must also describe a performance evaluation process and the methods of oversight and supervision of the employee. Note that the training plan will be evaluated by the employee’s DSO for completeness, meaning that the DSO will ensure that the Form I-983 is signed and addresses the regulatory requirements of the training program. An ICE tutorial on drafting Form I-983 is available here.

Additional Requirements for Employers

The new 24-month STEM OPT regulation contains several notable requirements for employers:

• Employers with employees on 24-month STEM OPT must be enrolled in E-Verify.
• The terms and conditions (including duties, hours, and compensation) of the STEM practical training opportunity be equal with the terms and conditions applicable to the employer’s similarly situated U.S. workers in the area of employment.
• Employers must have sufficient resources and personnel available and be prepared to provide appropriate training in connection with the opportunity at the location(s) specified on Form I-983.
• Employers must notify the employee’s DSO if there is a material change to the training opportunity, including the termination or resignation of the employee, within five business days
• The employer must not use the F-1 STEM OPT employee to replace full or part time U.S. workers.

The regulation also indicates that DHS may perform site visits in order to determine if an employer is providing the training opportunity stated in the I-983 and to ensure that the employer is not abusing the program. It notes that employers will receive 48-hours notice of any site visits that do not result from a complaint or other evidence of noncompliance with the program. The number of employer site visits that ICE is planning is not clear at present but, as with other site visit programs, visits are not likely to be a widespread issue in the absence of complaints against an employer.

Action Steps for Employers

• Identify current employees holding 17-month STEM OPT work authorization who are eligible for the 7-month extension
  • Employees with STEM OPT work authorization that is valid on or after October 7, 2016 are eligible to file for an extension
  • The seven-month STEM OPT extension application must be filed with USCIS between May 10, 2016 and August 8, 2016
  • At the time of filing, the employee’s current 17-month STEM OPT work authorization must be valid for at least 150 days
• Identify current employees who can benefit from a STEM OPT extension
  • These employees must file for 24-month OPT STEM extension before the expiration of their current OPT work authorization
• Work with eligible employees to complete Form I-983
• Develop a system to identify F-1 initial OPT employees eligible for the 24-month STEM OPT and STEM OPT employees when they are hired and work with them to create and submit training plans to their DSO for approval

 

 

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