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4 Ways the Biden Administration Could Change Immigration Policy Immediately to Alleviate the National Nursing Shortage
roberT p. Webber, esq., maria Julia uChoa, and Tom oJa
The United States faces a wellknown national labor shortage, with a record number of job openings. The labor shortage is particularly acute in certain important sectors, including healthcare. While the healthcare worker shortage has been longstanding, the COVID-19 pandemic over the last 24 months has made the shortage of healthcare workers even more severe. The stress of the pandemic has increased burnout, and, to some extent, vaccine mandates have resulted in even fewer healthcare workers being available, especially for rural areas. And now, a lack of staffing itself is leading to more burn-out, so many employers are in a vicious downward cycle on staffing. This article focuses principally on one imzportant healthcare occupation – Registered Nurses (RNs) – and how immigration policy modifications could help resolve staffing shortages in the occupation. The American Nurses Association projects there will be far more Registered Nurse jobs available in 2022 than any other profession, and the Bureau of Labor Statistics has indicated a need for 1.1 million new RNs to fill the gap created by healthcare expansion and retiring nurses. This article highlights 4 policy change the Biden Administration could make immediately to alleviate the national nursing shortage. None of these policy changes require action from Congress, which is notoriously unable to pass positive immigration reform.
1. Expand STEM OPT to include nursing and other healthcare majors.
There are approximately 1 million international students in the United States on F-1 visas. F-1 students in college or graduate school are eligible for 12 months of general Optional Practical Training (“OPT”) after graduation. However, international students who major in certain qualifying fields are eligible for an additional 24 months of OPT. This 24-month term is known as “STEM OPT” – for those majoring in designated Science, Technology, Engineering, and Math (STEM) fields. The Biden Administration has already recognized the importance of STEM OPT. In January 2022, the U.S. Department of Homeland Security made 22 additional fields of study eligible for STEM OPT. But sadly (curiously?), nursing and various other healthcare-related fields of study are NOT listed as qualifying for STEM OPT, even in the updated list containing the 22 additional fields. Policy Change #1 - The Biden Administration could immediately increase the available number of nurses and other healthcare workers by making nursing and other healthcare majors eligible for STEM OPT. Expanding STEM OPT to nursing would also likely attract more students into the field as international students would know they would have up to 36 months of work authorization after graduation, which would generally give them enough time to process for a green card.
2. Accelerate 9141 Prevailing Wage Determinations for nurses, physicians, and other healthcare occupations.
U.S. employers seeking to hire foreign nationals as RNs generally must go through an immigrant visa petition sponsorship process that involves declaring they will pay the sponsored immigrant nurse the required wage (prevailing wage) for the geographic area where the position is based. Even though RNs are eligible for relatively fast track Schedule A processing for green cards, including an exemption from the individualized labor market test, each sponsoring employer must obtain the prevailing wage from the U.S. Department of Labor (DOL) using Form 9141. Right now, in April 2022, DOL’s 9141 determinations are being issued at the record slow pace of 6+ months. Policy Change #2 - The Biden Administration’s DOL could immediately designate all nurses, physicians, and other healthcare professionals as special shortage occupations eligible for fast-track 9141 determinations. All 9141 determinations for nurses, physicians, and other healthcare workers could be done in 30 days (rather than 6+ months). This action would greatly accelerate the process for immigrant visa sponsorship and get more qualified nurses, paid in compliance with the prevailing wage, into the field much faster. There are many thousands of cases stalled because of slow processing of 9141 determinations.
As a general rule, RNs are not eligible for H-1B temporary work visas. This is because the traditional approach at USCIS is that RNs do not qualify as a “specialty occupation.” This policy is justified because of a historic anomaly. Long ago, RNs would qualify for the occupation based on completion of a two-year nursing degree. But now, in 2022, and for the past several years, RNs generally enter the occupation after completing a Bachelor’s (not an Associate’s) degree. It is wellestablished that over the past 20 years, nursing has become increasingly sophisticated and the fundamental education to enter the field is a Bachelor’s degree, meaning RN’s should qualify for H-1B designation. But the USCIS policy persists that registered nursing is not a specialty occupation.
Allowing employers to sponsor RNs for H-1B visas would greatly facilitate U.S. employers hiring nurses from abroad. Right now, nurses from abroad must go through the slowmoving immigrant visa process. If, however, RNs were eligible for H-1B visas, then the process of bringing RNs directly from abroad would be greatly enhanced. Importantly, while USCIS typically defers to DOL analysis on which occupations qualify as specialty occupations, DOL’s Occupational Outlook Handbook (OOH) currently lists a Bachelor’s degree as the typical entry-level education for RNs. In the past, the OOH listed the entry-level education for a nurse as an Associate’s degree. The DOL also now indicates that RNs are in Job Zone 4, the same zone as engineers and teachers – two occupations which clearly qualify for H-1B designation. Thus, various DOL sources that USCIS relies upon suggests that registered nursing is a specialty occupation.
Policy Change #3 - The Biden Administration could immediately release a memo from USCIS HQ making clear that RNs now qualify for H-1B designation since a Bachelor’s degree is normally the minimum entry requirement for this profession. This policy change is supported by DOL statements and publications on the current minimum education of RNs.
Making clear that RNs are eligible for H-1B designation (policy change #3, above) is only a partial solution. To maximize the benefit of H-1B designation being available to RNs, USCIS should also revisit the definition of “affiliation” for H-1B cap designation. Currently, USCIS regulations recognize that certain employers are exempt from the H-1B cap based on “affiliation” with institutions of higher education. But USCIS policy has taken a very strict view of what qualifies as an “affiliation.” Policy Change #4 - The Biden Administration could release clear guidance on what qualifies as an “affiliated” institution eligible for H-1B cap exemption. By giving employers, including hospitals, health systems, and nursing homes a clear and reasonable roadmap to H-1B cap exemption, these employers could, along with policy change #3, sponsor RNs for H-1B visas exempt from the cap, allowing qualified RNs to enter the U.S. workforce from abroad.
Conclusion
The labor shortage in the United States is clearly here. Healthcare is a sector that is particularly hard-hit by the shortage of qualified workers. Demographic changes put more pressure on the healthcare system – the baby boomers are aging and requiring more healthcare services.
Although comprehensive immigration reform through Congress is ideal, in the short term, policy changes like those suggested above can help America’s nurses, who are tired and overworked.
About the Authors
Robert P. Webber is an immigration attorney based in Minnesota. His clients include hospitals, health systems, individual health care workers, as well as self-petitioning physicians, scientists, and medical researchers. Julia Uchoa and Tom Oja are law clerks at Webber Law Firm 2.0.
EB-1A Extraordinary Tips: Review of May 2022 AAO Decisions
John Khosravi, esq.
John Khosravi, Esq. JQKLaw.com Info@JQKLaw.com
The EB-1a criteria listed in the regulations seem deceptively simple. However, in practice, you will find myriad nuances for each. Moreover, all the different fields interact differently with these criteria. I found the best education on current standards (and things to watch out for) in the Administrative Appeals Office (AAO) non-precedent decisions. Here are some tips from May 2022 decisions:
Judge the work of others
The Petitioner presented events that he was in the filming of a talent-judging type television show. However, the letters provided attesting to this by the show’s producers did not mention if the judging panel was responsible for scoring contestants or otherwise selecting the winner.
You would think that is a given when labeled with the title of “judge,” but you have to be specific in your letter. They also found evidence that the show was broadcast was not provided1 .
Work displayed at artistic exhibitions or showcases
The USCIS Officer reviewing the case mistakenly limited the display of artistic work for visual artists only and said the Petitioner’s showcase of performing arts would not be included in this criterion. The AAO corroborated that USCIS was incorrect and that performing arts are part of this criteria.2
1 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY312022_01B2203.pdf 2 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY312022_01B2203.pdf
I have found this criterion to be one of the most difficult to satisfy. USCIS requires evidence of strict standards for membership. In one decision, the Petitioner was a senior member of the Institute of Electrical and Electronics Engineers (IEEE). However, in this case, USCIS accepted this membership, but the AAO disagreed because the requirements for senior membership did not include outstanding achievement, and the Petitioner had not shown that recognized national or international experts judged the achievements of candidates for senior membership.3
Published material about the Petitioner
A decade ago, I found USCIS to be more generous in this category, but the standards have become stricter. As a reminder, the article(s) provided must be about the Petitioner and the contents must relate to the Petitioner’s work in the field under which they seek classification as an immigrant.
In addition to appearing in professional or major trade publications or other major media (Author’s note: there is a bias for print media), the Petitioner must provide each published item’s title, date, author and any necessary translation. 8 C.F.R. § 204.5(h) (3)(iii). It is best to add the article and the cover of the magazine or newspaper it appears on. If online, the home page and about page should be provided (in addition to the article).
When the article is published on a website, try using online traffic statistics for the website to corroborate that it is a distinguished media organization. You should also provide comparable website statistics for other established competitors to show the standing of the publisher of your client’s article.
3 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY262022_01B2203.pdf Finally, one recent appeal was denied because the Petitioner provided articles from the print editions of publications that were not accompanied by evidence that the articles also appeared in the respective online editions. Also, the print titles did not include circulation numbers of the publication.
Finally, they provided screenshots of videos they appeared in, but the AAO said they had to include transcripts of the video/interview (a summarized transcript could be problematic). This creates a lot more work and costs for the client, especially if translations are required.4
High Salary
When using invoices as evidence of high income, the invoices alone are insufficient. It would best to show the income coming into the account (or taxes returns, etc.) to show that the payment was honored.
Also, if payment is coming to a company or project, the money might be going to more than the just the Petitioner. For example, if
4 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY312022_01B2203.pdf paid for a show, some costs will go to overhead and payroll for others. So that payment doesn’t necessarily show the Petitioner’s high income.5
Importantly, when comparing the income with other’s in the field (showing that it is relatively higher), you should compare it with the people in the country where the Petitioner is. If they live in France, comparing to U.S. Gov’t Data (O-NET or the Bureau of Labor Statistics of the U.S. Department of Labor (DOL)) is not acceptable. Should compare to local stats (which can be extremely hard to find).
In addition, the comparable salaries should be close to the job/title specific. Using “computer occupation” numbers for and “IT Project Manager” become the latter’s data is unavailable can be problematic.6
5 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY312022_01B2203.pdf 6 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY262022_01B2203.pdf
For the Kazarian analyses, after satisfying the 3 minimum criteria, evidence of sustained acclaim is required. In one decision, sustained acclaim was not accepted because the Petitioner changed jobs a number of times in the years immediately surrounding the petition filing, and he provided salary or remuneration evidence of only some of his jobs during that time. With incomplete evidence, the AAO said it would not be able to conclude that his compensation reflected sustained national or international acclaim.7 An officer must fully explain the reasons for denying a visa petition in order to allow a Petitioner a fair opportunity to contest the decision and to allow [the AAO] an opportunity for meaningful appellate review. See 8 CFR Sec. 103.3(a)(1)(i), see also Matter of M-P-, 20I&N Dec. 786 (IA 1993)
Be careful out there! John Khosravi is the Managing Attorney of the JQK Law Firm, a boutique-style Immigration Law firm. He is also the President of the Immigration Lawyers Toolbox®, an education, and media company focused on immigration law, including the only Immigration Lawyers Toolbox® Trade Magazine and the Immigration Lawyers Podcast. He is also a former Professor of Immigration Law at Pepperdine and Loyola Law Schools.
7 https://www.uscis.gov/sites/default/ files/err/B2%20-%20Aliens%20with%20Extraordinary%20Ability/Decisions_Issued_in_2022/ MAY262022_01B2203.pdf
Avoiding and Responding to R-1 Nonimmigrant Religious Worker Requests for Evidence
sCoTT andreW FulKs, esq.
As with most USCIS petitions during COVID, processing times for R-1 petitions reached all-time highs during 2020 and 2021. More recently, the religious worker nonimmigrant category has decreased, yet long processing times remain. Religious communities often require the beneficiary’s services immediately, but frequently this is impossible. Since most religious petitioners remain ineligible for premium processing under current USCIS policies1, avoiding Requests for Evidence (RFE) is crucial to keeping processing times at a minimum2 . Those handling R-1 petitions for faith-based organizations should reexamine the initial evidence submitted relating to the following four items
1 Requests for premium processing will only be accepted if the petitioner has previously filed an R-1 petition and completed a successful on-site inspection by the Fraud and Detection National Security Directorate. 2 Total avoidance of R-1 RFEs may be an elusive feat. A recent informal survey of the AILA members of the Religious Workers Interest Group conducted by the author revealed that seasoned R-1 practitioners receive RFEs in nearly 30% of their cases filed under Premium Processing and in 40% of their non-premium processing cases.
Petitioner’s Proffered Position
The R-1 regulations provide for three kinds of R-1 positions: ministers, religious occupations, and religious vocations. 8 C.F.R. § 214.2(r). While practitioners can expect RFEs related to all three categories, they can expect significant pushback from the California Service Center (CSC) related to religious occupations because of the flexible nature of the position. Eligible positions could include not only ministry coordinators, broadcasters, and missionaries but also translators, cantors, and private school teachers. A religious occupation must be primarily related to a traditional religious function, carry out the religious creed of the community, and not be primarily administrative in its functions. Vital to avoiding an RFE is the inclusion of the following documents:
1. A detailed job description highlighting the religious component of each duty and validating the administrative elements of the job as incidental to the former.
2. A weekly schedule cataloging the duration and kinds of functions that carry out the creed of the community. 3. A support letter signed
by the petitioner substantiating how the position is a traditional religious function within the religious community.
religious function within the religious community. Failure to submit the foregoing items with the I-129 can easily result in an RFE and further delay processing. On the other hand, “ministers” are those fully authorized and trained within the religious community to carry out religious functions “usually performed by authorized members” and are not “a person not authorized to perform duties usually performed by clergy.” Id. Whether a particular religious community considers an R-1 beneficiary a “minister” will often hinge on whether specified credentials serve as the baseline minimum for similarly-situated employees. For example, if either Buddhist ordination at a specified abbey or a Master of Divinity (M.Div.) degree would normally be required for a “minister,” an R-1 beneficiary who does not submit the requisite certificate may be asked to provide it.
Petitioner’s religious denomination and beneficiary’s membership
Importantly, the beneficiary must establish that they have been a member of the same religious denomination as the petitioner’s denomination for the previous two years. This requirement can initially raise concerns if the beneficiary was or is a member of a different religious organization than the petitioner. Colloquially, the term “denomination” is often used in certain religious settings to connote a separate association of religious communities within a broader religious movement. However, recent non-precedent AAO decisions have made clear that a “denomination” for R-1 purposes does not require an institutional or governmental relationship between the religious organizations; rather, only a common type of ecclesiastical government is required between the two entities.
Therefore, the beneficiary can be a part of the same “denomination” as the petitioner even if the religious communities belong to seemingly segregated associations: for example, Methodists, Lutherans, and Presbyterians are all a part of the same “denomination.” What is required is for the practitioner to craft a sufficiently broad “denomination” to encompass both the beneficiary’s and the petitioner’s religious organizations. An RFE can be avoided on this issue by submitting the foundational doctrinal statement or creed for each religious organization.
Nonetheless, officers at the CSC will sometimes challenge whether the beneficiary’s membership is in the same denomination as the petitioner’s denomination. Specifically, they may request to review evidence of a common type of ecclesiastical government and one or more of any of the following six characteristics established at 8 C.F.R. § 214.2(r)(3):
1. A recognized common creed or statement of faith shared among the denomination’s members;
2. A common form of worship;
3. A common formal code of doctrine and discipline;
4. Common religious services and ceremonies;
5. Common established places of religious worship or religious congregations; or
6. Comparable indicia of a bona fide religious denomination.
Such a request for the government to evaluate the religious doctrine or structure between faith-based organizations is in direct violation of settled First Amendment case law. Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969) (establishing that the government cannot inquire into church doctrine to determine a legal matter); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970) (finding that courts do not raise First Amendment concerns as long as they do not inquire about church doctrine when settling church disputes).
First, submission of evidence relating to a common type of ecclesiastical government would necessitate for USCIS to evaluate beliefs between religious organizations in violation of the Establishment Clause. Second, it would require for the government to make a final determination regarding the faith-based communities’ forms of religious governance as either sufficiently common or not. Lastly, it would assume that the officer is legally permitted (let alone personally competent!) to compare and contrast the core standards between religious organizations in violation of the Establishment Clause. In essence, a USCIS officer would need to formulate doctrinal conclusions in denying the I-129 petition for these purposes.
Of course, the submission of the foundational doctrinal statement or creed at the outset could help avoid this kind of RFE, however, any response to an RFE requesting to evaluate organizational or doctrinal evidence should emphatically forbid the government’s ability to inquire any further than the mere submission of documents. Because the regulations require that two or more religious organizations share “a common type of ecclesiastical government” and one of the six enumerated characteristics above, something must be submitted. A response sufficient to overcome any RFE under this category should include, first, a letter signed by the petitioner establishing the First Amendment case law above and, second, any doctrinal statement from each organization in question (regardless of any perceived denominational/doctrinal differences in those statements) that at least addresses each organization’s governance and beliefs.
Petitioner’s ability to pay
The R-1 context remains substantially different from other nonimmigrant categories in that there exists no established minimum wage that the petitioner must pay the beneficiary. In addition, a petitioner is not required to file an LCA as a prerequisite to filing the I-129 petition. Nonetheless, the petitioner must establish that the organization has sufficient revenue or assets to cover the beneficiary’s proposed salary. If the petitioner is unable to demonstrate this, it should include a statement as to why or how it will be possible to meet this standard by the time the R-1 beneficiary is hired. Most importantly, initial submissions should always include redacted W-2s previously issued by the petitioner for current employees if an RFE is to be avoided.
Frequently, RFEs could arise on this matter for those I-129s which extend the stay of the beneficiary in R-1 status. The CSC frequently requires prior proof of compliance with past compensation for previous periods in R-1 status. Documents requested include cashed checks provided by the petitioner to the beneficiary, a copy of the beneficiary’s tax returns,
and a copy of the beneficiary’s bank statements showing the deposit of the same checks. By preempting this request at filing, an RFE may be circumvented.
Further distinguished from other nonimmigrant categories, the R-1 regulations do not establish whether the petitioner or the beneficiary must pay the filing or legal fees. Nonetheless, the CSC has issued Requests for Evidence (and Notices of Intent to Deny) purporting to require that only the petitioner may pay the legal and filing fees. On-site visits at the petitioner’s headquarters conducted by officers of the Fraud and Detection National Security Directorate often confuse nonimmigrant categories and ask the petitioner who paid the legal and filing fees. Responses by the petitioner that the beneficiary has paid either fee has then been erroneously reported by the FDNS officer to the CSC. Nonetheless, an RFE on this matter can be avoided by preparing the client to respond to this line of questioning at the on-site visit. If an RFE is issued, a response sufficient to overcome this request and obtain approval is a letter signed by the petitioner that no such regulation exists.
Beneficiary’s qualifications
Further distinguishing the R-1 category among other nonimmigrant visas is the standard of proof regarding the beneficiary’s qualifications for the position. Evidence submitted with the I-129 on this issue can be minimal, however, it should be sufficient to remove any doubt in the officer’s mind that the beneficiary would be competent to perform the proposed job duties. Despite the lessened standard, RFEs can be issued for specific concerns.
For example, I-129s filed under the “minister” category may result in an RFE if the petitioner has not established that the beneficiary is qualified according to the standards of the petitioner’s own denomination. Officers will often assume from the petitioner’s previous submissions— or worse, the officer’s personal knowledge—that the petitioner’s denomination holds to a common prerequisite for similar positions. However, if an established course of education is normally required within the denomination, then initial submissions should include degree diplomas, transcripts, curriculum, and other comparable evidence that the beneficiary has completed the prescribed training. Likewise, if ordination is typically required among the denominational organizations, then a certificate establishing the same is foundational.
To reduce RFEs on this issue, be sure that the beneficiary provides a detailed resume highlighting the religious functions previously assumed (even if they have never held a similar position) and listing any volunteer work or roles for religious organizations. This confirms their previous engagement in religious organizations. In addition, the beneficiary should submit pictures carrying out similar functions in earlier roles or attending religious functions. However, some faiths are reticent to take photos at the gathering of their religious communities so affidavits by acquaintances testifying to the same would be sufficient. Because avoiding R-1 RFEs is not wholly possible, it is important for the practitioner to plan for RFEs not only in responses but in also in retainers. RFEs come at a considerable cost in time and labor and should be contemplated in the agreement at either a set fee or hourly rate. Some practitioners include language charging clients for responses to RFEs beyond an established set of hours. Others build them into the initial retainer fee because of the high percentage of RFEs issued in this nonimmigrant category.
Whether or not work done in response to RFEs is built into the retainer, assuring that sufficient evidence is submitted at filing will go a long way to reduce the likelihood of an RFE and the need to gather additional evidence in response.
About the Author
Scott Andrew Fulks works with businesses, families, and individuals on immigration matters. Having spent most of his childhood in South America and later emigrated to Europe as an adult, Scott has a passion for immigrants and the opportunities provided by global migration. He utilizes his bilingual abilities and cultural awareness to guide immigrants through an increasingly complex and unstable U.S. immigration system.
Scott first joined the firm in 2015. He began practicing immigration law upon graduation from the University of St. Thomas School of Law in Minneapolis. While in law school, Scott successfully obtained asylum for a West African client before USCIS and authored an amicus brief to the U.S. Supreme Court that was influential in securing a 5-4 decision for the plaintiffs in a landmark First Amendment case. In his spare time, he enjoys spending time with his wife and children, coaching soccer, and supporting Minnesota United.
