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Senators Propose Expedited Green Cards for Medical Professionals in Fight Against COVID-19

As the Senate reconvenes this week with new COVID-19 guidelines in effect, four Senators propose to introduce a new bill dubbed the "Healthcare Workforce Resilience Act." The proposed bill would allow immigrant medical professionals to receive an expedited green card to assist in the fight against COVID-19, the disease that is caused by the novel coronavirus and has already claimed thousands of lives in the U.S. The bill is being sponsored by Senators Dick Durbin (Democrat – Illinois), David Perdue (Republican – Georgia), Todd Young (Republican – Indiana), and Chris Coon (Democrat – Delaware).

The proposed bill will free up to 40,000 "recycled" employment-based visa slots for foreign born doctors and nurses who could help fight the COVID-19 pandemic. Under the proposed bill, nurses and physicians with approved immigrant visa petitions will either be allowed (1) entry into the U.S. if currently overseas or (2) to adjust their status if they are already in the U.S. To make this possible, U.S. Citizenship & Immigration Services ("USCIS") would "recapture" up to 25,000 immigrant visas for nurses and up to 15,000 immigrant visas for physicians. USCIS will also recapture immigrant visas for the families of these medical professionals receiving consideration under the proposed bill.

The recycled visas would not add new immigrants to the country. Rather, the recycled visas would be drawn from the pool of unused employment-based visas that Congress has previously authorized. From fiscal years 1992 to 2020, Congress authorized over 200,000 visas that went unused. The recaptured visas would be issued in order of priority date and would not be subject to country caps.

If the bill is passed, all immigrant medical professionals who have previously filed petitions for immigrant visas and receive consideration under the bill would be required to meet licensing requirements, pay the required filing fees, and would be subjected to rigorous background checks. If an immigrant medical professional receiving consideration under this bill is overseas, employers will be required to attest that the immigrant medical professional has not displaced and will not displace a United States citizen worker.

We will be monitoring these developments as they become available. Moreover, our experienced immigration attorneys can assist you in understanding these developments and in other requirements under the law.

USCIS Introduces New Option to Meet Cap Exemption

USCIS has published a final rule on November 18, 2016 which introduces a fourth option to meet the exemption from the H-1B quota. A nonprofit entity can claim cap exemption by demonstrating that it has entered into a formal written affiliation agreement with an institution of higher education that: establishes an active working relationship between the nonprofit entity and the institution for the purposes of research or education, and the fundamental activity of the nonprofit entity is to directly contribute to the research of education mission of the institution of higher education.

In the proposed rule, the term “primary purpose” was used instead of “fundamental activity.” However, in response to the public comments which suggested the term “primary purpose” was too restrictive, the Department of Homeland Security (“DHS”) replaced “primary purpose” with “fundamental activity.” DHS expects that this substitution of the terms will allow more nonprofit entities to take advantage of the exemption. In the commentary preceding the regulation, DHS also clarified that if a nonprofit entity is engaged in more than one fundamental activity, it can still take advantage of the exemption because the exemption requires that at least one of these fundamental activities directly contributes to research or education of an institution of higher education. This rule will go into effect on January 17, 2017.

Read the Final Rule here

USCIS Publishes Final Guidance on When to File H-1B Amendment

USCIS published the final guidance on when to file H-1B Amendments for work location changes. A few key takeaways from the Memo: USCIS will not apply the Simeio decision retroactively meaning they will not pursue adverse action on location changes prior to the decision for which no amendment was filed. An amended petition must be filed by January 15, 2016 for work locations which occurred between April 10, 2015 and August 18, 2015. An amended petition must be filed prior to the beginning of employment at the new location if the work location change occurred on or after August 19, 2015.

Read the full Memo here.

USCIS Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision

On April 9, 2015, USCIS’s Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Worker (LCA) is required for a change in the H-1B worker’s worksite location. Specifically, the decision stated:

1.    When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers (LCA) to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
2.    When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.
This precedent decision represents USCIS' position that employers are required to file an amended petition before placing an H-1B employee at a new worksite.

See the full USCIS Guidance at http://www.aila.org/File/DownloadEmbeddedFile/64527