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The Department of State (DOS) has released its July Visa Bulletin, making all categories current in the employment based system. The visa bulletin takes effect on July 1st. This is a MAJOR development.

For applicants waiting for interviews at the consulate: the foreign national may proceed with the consulate interview after the National Visa Center or the consulate schedules an interview. It is expected that it will take the NVC some time to begin issuing appointment dates, as there are thousands of cases that have stacked up during the period of retrogression.
For applicants with labor certification approvals: the foreign national may proceed with concurrent filing of the I-140 and I-485 applications.
For applicants with approved I-140 petitions: the foreign national may proceed with the I-485 Adjustment of Status or consular interview, depending upon which option the foreign national is choosing.
For applicants in the U.S. on temporary status who are eligible to bypass labor certification (e.g. registered nurses, physical therapists, National Interest Waivers, Exceptional Ability Aliens, etc.): the foreign national may proceed with concurrent filing of the I-140 and I-485 applications.

These dates will remain current until at least August 1, 2007. However, USCIS fee increases go into effect on July 30 2007. Therefore, we will be working diligently to file before the fee increases go into effect, subject to cooperation from the foreign national in sending the documents to us timely.

The 109th Congressional session has concluded without enacting legislation to increase H-1B or employment-based immigrant visas

The 109th Congressional session has concluded without enacting legislation to increase H-1B or employment-based immigrant visas. Successful immigration related legislation included:

- An extension of the Conrad 30 program providing J-1 waivers for physicians - A "re-authorization" of the H-1C category - Legislation authorizing P visa eligibility for certain athletes rather than the current problematic H-2B visa category

Efforts by Senators Cornyn and Hutchinson to increase H-1B visas and immigrant visas for nurses (respectively) were unsuccessful. Accordingly, U.S. employers will remain unable to obtain new H-1B workers until October 2007. Additionally, foreign nationals in the green card process will continue to face lengthy delays in obtaining immigrant visas. Most notably, U.S. hospitals and other healthcare facilities recruiting foreign Registered Nurses and Physical Therapists remain temporarily unable to obtain immigrant visas unless or until Congress authorizes additional immigrant visas for Schedule A workers or eliminates Schedule A workers from the visa quota. Advocacy efforts and lobbying will continue.

We will continue to update you on recent immigration changes on nurse immigration.

Hutchinson to recapture tens of thousands of permanent EB numbers for nurses - failed due to obstruction by the House Republican leadership and Sen. Sessions, Republican of Alabama. Apparently, Sen. Sessions is willing to take on the technology industry and tens of thousands of immigrant tech workers instead of standing up to the small number of anti-immigrationists in Alabama.

We expect that most members of Congress to enact large-scale immigration benefit legislation in the first weeks of the 110th Congress.

What is Retrogression? Retrogression refers to the resulting delay in obtaining an immigrant visa when there are more people applying for immigrant visas in a given year than the total number of visas available.

Congress imposed an annual limit to the number of immigrant visas ("green cards") the USCIS can issue each fiscal year. The total number of immigrant visas available each year is distributed amongst all applicants according to the category of eligibility (such as various family based or employment based categories) and the applicant's country of birth. This ensures an equitable distribution of the limited number of immigrant visas available each year. When the number of applicants from a particular country is greater than the number of visas available in a particular category, retrogression occurs and a "queue" is established.

When there are more people applying for immigrant visas than the total number available, applicants must wait in the "queue" until an immigrant visa becomes available. Until an applicant reaches the front of the queue, an immigrant visa cannot be granted. Practically speaking, this means that the applicant cannot file an Application to Adjust Status (Form I-485) or obtain an immigrant visa by attending an immigrant visa interview at a U.S. Consulate abroad.

An applicant's place in the queue, referred to as their "priority date", is established by initiating the green card process. For Schedule A petitions, the priority date is the date the Immigrant Petition for Alien Worker (form I-140) was received by the USCIS. The queue is administered by the U.S. Department of State. Each month, the U.S. Department of State issues a "Visa Bulletin" which announces the priority dates eligible for immigrant visas in each category (further divided based upon the applicant's country of birth).

Immigrant visa petitions for Schedule A occupations generally fall within the "EB-3" category. This category encompasses petitions filed for "Professionals and Skilled Workers" (positions that require a minimum of a Bachelor's degree or two years of training) as well "Other Workers" (for positions that require less than two years of experience). For the last few years, there have been more applicants for immigrant visas in the EB-3 category than the total number of visas available. Therefore, this category has been "retrogressed" since 2005. An applicant is this category must have a priority date of April 22, 2001 to July 1, 2002 depending upon their country of birth.

However, legislation passed in 2005 allocated an additional 50,000 immigrant visas specifically for Schedule A petitions and created a new EB-3 subcategory, "EX" for these visas. Unfortunately, this special allocation of 50,000 immigrant visas is nearly exhausted. The November Visa Bulletin announced that the priority date for the EX category is October 1, 2005. Therefore, as of November 1, 2005, an applicant for an immigrant visa based upon a Schedule A petition would have needed to have filed the I-140 petition on or before October 1, 2005 to be immediately eligible for an immigrant visa.

Yes. Retrogression does not impact the employer's ability to file Schedule A petitions with the USCIS. Employers can continue to file Immigrant Petitions for Alien Workers (Form I-140) with the USCIS, and those petitions can still be approved. The USCIS will also continue to forward approved petitions to the National Visa Center ("NVC"). Similarly, the National Visa Center will continue to process approved Schedule A I-140 petitions by issuing Fee Bills and collecting "Packet III" documents.

However, U.S. Consulates will not assign interview dates and will not be able to issue immigrant visas to Nurses and Physical Therapists until retrogression for Schedule A category ("EX") is resolved. [Note that in the month of November, an immigrant visa can still be issued for the Beneficiary of an I-140 filed on or before October 1, 2005.

How Does Retrogression Impact Spouses and Children of Registered Nurses and Physical Therapists Who Have Already Entered the United States?

The spouse or child of a Registered Nurse or Physical Therapist who has already been granted the immigrant visa and entered the United States is still subject to retrogression. If the spouse or child has not obtained the immigrant visa before the EX category "retrogresses" they will not be eligible for the visa until their priority date is current in the EB-3 category or until additional immigrant visas are made available for Schedule A petitions.

How Does Retrogression Impact a Registered Nurse or Physical Therapist Who Has Already Been Granted An Immigrant Visa?

Once the visa is issued, retrogression is no longer relevant. A Registered Nurse or Physical Therapist (and their spouse and children) who have obtained an immigrant visa in their passport from the U.S. Consulate will be able to enter the United States (thereby becoming permanent residents or "green card holders") during the entire validity of the immigrant visa.

How Does Retrogression Impact Nurses and Physical Therapists in the U.S. Who Have Not Yet Filed an Adjustment of Status Application: Can I still file an I-485?

As of November 1, 2005, the ability to "concurrently file" the I-140 and I-485 will be temporarily unavailable. An I-140 petition can still be filed, but the Application to Adjust Status (Form I-485) which provides authorization to remaining the United States and eligibility for employment authorization cannot be filed. [Note that in month of November, an I-485 can still be filed if the Applicant also has an I-140 filed on or before October 1, 2005.]

If an Application to Adjust Status (Form I-485) has already been filed, the USCIS will allow that application to remain pending indefinitely until an immigrant visa becomes available. Additionally, because the application remains pending, the Nurse or Physical Therapist (and family members with pending applications to adjust status) can continue to obtain employment authorization and advance parole.

There are already several legislative efforts underway to provide additional immigrant visas for Schedule A petitions. Relief could be within the next month, or could take several months. However, it is widely accepted that legislative relief will be forthcoming. The United States has declared a national shortage of Registered Nurses and Physical Therapists, the resulting delays in filling these positions caused by retrogression will be taxing for the U.S. healthcare system and a major force for legislative resolution.

Although the latest Visa Bulletin, released October 10, brings the bad news the industry has been expecting for months, there is a small “reprieve”. Retrogression for EX visas (Schedule A) will occur in November. However, the November Visa Bulletin established a priority date of October 1, 2005 for the EX/Schedule A category rather than making the category completely unavailable. For Schedule A petitions, the priority date is the date the Immigrant Petition for Alien Worker (Form I-140) was received by the United States Citizenship and Immigration Service (USCIS). This means that only those individuals who filed an I-140 petition on October 1, 2005 or earlier will still be eligible to obtain an immigrant visa either through a consular interview or through the filing of an Application to Adjust Status (Form I-485). Additionally, individuals in the United States will not be eligible to file the Adjustment of Status Application (Form I-485) unless they previously filed an I-140 petition on October 1, 2005 or earlier. Initial concurrent filings of the I-140 and I-485 will be temporarily unavailable beginning November 1, 2006.

The latest Visa Bulletin, released yesterday, tells a sad story. Unless an immigration bill is passed in the next two months, retrogression for EX visas (Schedule A) will occur in October. Shortly thereafter, perhaps in November, the category will cease to exist. At that time all Schedule A cases will be frozen. We believe that the category will not last beyond January 2007.

Most consular processing cases will remain at the stage that they are processing. For instance if a case is at the National Visa Center it will sit there pending the end of retrogressed numbers. If a case is at the Consulate stage but has yet to receive a visa interview appointment, it will not be afforded an appointment during the retrogression. However the USCIS will still process and approve I-140 petitions.

Any nurses or physical therapists who have the potential to file an Adjustment of Status ought to do so. Any I-140/485 that is filed prior to the retrogression is eligible for advance parole travel documents and employment authorization cards. However the underlying green card case is ineligible for approval.

HLG is planning two teleconferences for all clients and friends. The first teleconference will explain the state of the legislation and how your company can contribute to the effort. We are optimistic that legislation will be passed, but it will take a large effort and funding. The second teleconference will be aimed at helping clients develop a retrogression strategy. The teleconference dates have not been finalized, but we expect both will be set by the end of the month.

Again last time the retrogression last 6 months. For now we don't know how long this one will last but keep in mind that there are many organizations, healthcare providers, law firms etc. that are lobbying in Senate to have Senators pass laws to allow nurses continue getting green cards. HLG who is processing your cases currently are the ones who coordinated the lobbying activities last time in Washington. Stay tuned for further information.

Our attorneys from Hammond Law Firm (HLG) have spoken with the Department of State. The DOS estimates that retrogression of Schedule A visas (aka EX visas) will occur in the 4th Quarter of 2006 unless there is Congressional action.

How can this effect you as an international nurse? Even though Retrogression kicks in, your case will continue to be processed until the Green Card Issuance Stage. In the mean time Retrogression for nurses can be lifted by Senate again just like it happened in 2005. That time our attorneys played a very key role in organizing the lobbying activities in the Senate that supported the law that enabled 50,000 additional green card for nurses. Currently, there are proposals that are pending in the Senate waiting for approval. You can read HLGs current activities in their blog, the link is provided below.

Last time it took about 6 months to solve the retro problem. This time it may take shorter or may be longer nobody knows that yet. However, with the nurse shortage crisis in the States no one can afford to wait too long for a resolution while patients are dying in the hospitals due lack of care.

What do you need to do? Continue to provide the necessary documents that your recruiter and your attorneys need so that your immigration processing can continue until the last stage. You may be able to complete your immigration before the retrogression starts. If not once the retro is lifted your case will continue to be processed from the last stage you have reached and it will be matter of couple months until your case is complete.

If you want to read more, HLG's Healthcare Immigration Advocacy Blog updates all of Congresses twists and turns about retrogression, green card quotas for nurses and other healthcare occupations, legislation, and advocacy. It also explains how you can get involved to influence this important national discussion.

SKIL Bill introdcued in the Senate.
Things we learned at AILA
Comprehensive Immigration Reform: Dead or Alive?
Text of the Senate's CIR bill

Several different immigration reform scenarios are currently in front of Congress. The President will likely sign anything that crosses his desk, since he is anxious to look like he's getting something done on immigration reform. However he is still stumping only for a Comprehensive Immigration Reform bill. While the immigration debate is focused on Border Security, Enforcement, and Terrorism, this Immigration Alert will focus on business' chances of having positive immigration reform passed.

The leading Business friendly bill is the SKIL Bill, which has been introduced in both the House and the Senate. The Senate included most of the SKIL Bill provisions in its recently passed CIR bill. Just before the July 4th recess Rep. Shadegg (R-AZ) and nine Republican cosponsors introduced the SKIL bill into the House.

Significant increase to the H-1 cap. The smallest increases call for a doubling of the quota. Some measures add a market-based component, which would annually adjust the quota to meet market demands. Congress realizes that the recent two month H-1 "season" is untenable if the U.S. economy is to continue to grow.

Increases to the Employment-Based Green Card Quota. Here the smallest measures also call for a doubling of the quota. This is necessary since otherwise qualified Employment-Based immigrants are currently prohibited from obtaining green cards solely because of quotas. Some pro-business measures also eliminate non-worker derivative family members against the employment-based quota as a way to artificially inflate the quota.

Various fast-tracked visa provisions for US Masters graduates. Congress realizes that if it is to entice foreign students, it cannot subsequently throw them out by limiting their access to H-1 visas and green cards.

Shortage Worker visa exceptions. The Department of Labor has designated two professions - Registered Nurses and Physical Therapists - as occupations which are extremely underserved by US workers. A variety of proposals exempt these occupations from the green card quota.

1. Enforcement Only. These proposals say that a wall must be built along the Mexican Border and that the current 10-12 million undocumented workers must be either deported, or have their access to work restricted through severe employer sanctions. In December 2005, the House passed a strict Enforcement Only bill. The Senate seems unlikely to pass an Enforcement Only bill.

2. Comprehensive Immigration Reform (CIR). These proposals call for many of the Enforcement measures as well as many of the pro-business measures described above. The Senate passed a CIR bill in March. The House seems unlikely to pass CIR.

3. SKIL Bill or other Business-friendly bill. There is a growing movement in Congress to conclude that the business measures are too important to be held back by the country's debate on Enforcement.

4. CIR with triggers. The idea here is that Congress would pass a bill which would immediately begin the Enforcement provisions. Then, once certain objective measures were met, other provisions would be "triggered". These provisions would mainly deal with increased migrant labor immigration. Rep. Mike Pence (R-IN) has been out in front of this proposal. Since no text has been released, it is unclear if the pro-business measures outlined earlier would become immediately available or if they would be subject to the triggering clauses; fortunately Rep. Pence tends to be very business friendly.

In the interests of helping our clients plan for the future, HLG is offering its first Legislation Odds Report. The LOR is based upon news sources, and our communications with Washington DC contacts, HLG clients, lobbyists, and trade groups.

If you want to increase the odds of any category, please call you Congressman. You can do so with this link: http://www.house.gov/writerep/ It is easy and will take less than 10 minutes! Tell him or her that you support CIR and/or the SKIL Bill.

The blue numbers are "business favorable." The red numbers are "business unfavorable." Keep in mind that even if "nothing" happens it is almost certain that targeted pro-business immigration bills will be proposed and passed. These would include a stand-alone H-1 bill, a stand-alone Schedule A bill, and a stand-alone Masters degree worker bill. All have wide-ranging support in both houses of Congress.

Only the debate over Enforcement stands in the way of a pro-business immigration bill