Ohio healthcare industry vigorously participates in the H-1B visa program. After all, the Appalachian Region, an area rich in healthcare workers serving in H-1B visa status, begins in Southern Columbus, Ohio and extends on south into the States of Kentucky and Tennessee. The Appalachian Region contains remote rural poverty-stricken areas where H-1B healthcare workers provide valuable services to those communities. The US Department of Health and Human Services have recognized many pockets in southern Ohio as “underserved areas” where immigration is encouraged. Many healthcare workers whether they are Physicians, Dentists, Occupational or Physical Therapists, or Speech Pathologists begin their immigration journey by serving in one of these remote rural known shortage areas in H-1B visa status. In fact our firm represents several major healthcare organizations who place healthcare workers of all kinds in several such areas. If you talk to human resource professionals in these firms they will tell you that they are constantly looking for qualified healthcare workers to take up positions in these remote and underserved areas. They do not focus their search on foreign H-1B visa workers, they will be just as happy to locate and place any healthcare worker in a medical facility located in the Appalachian Region or in any other such known shortage areas.
These placement firms provide a much needed “missing link” in that they constantly search for qualified and dedicated healthcare workers in the medical or allied medical fields and place them where they are needed the most. Often times they fill these positions with H-1B visa healthcare professionals. This process has been ongoing in the US for decades and worked very well. Congress and the USCIS have encouraged the placement of foreign H-1B visa workers at such organizations and exempted such positions from the annual H-1B visa cap. For instance, the American Competitiveness in the Twenty First Century Act of 2000 expressly exempted positions in which H-1B visa workers may be “working at” a cap exempt employer. An example of a cap exempt employer is a non-profit organization affiliated with an institution of higher learning, as the vast majority of US hospitals are. Congress and the USCIS did so in recognition that immigration is needed more in the healthcare area. Hence, the culture of placing tens of thousands of H-1B healthcare workers at healthcare facilities by staffing firms is part of the US standard operating procedure.
Now comes Mr. Donald Neufeld of the USCIS and on January 8, 2010 issues a memorandum aimed at regulating H-1B visa workers placed at third-party end client locations. The memorandum focuses on the element of “control” in the relationship between company and H-1B visa worker. For that end it establishes an eleven prong test to determine whether there existed sufficient employer-employee insignia to support the issuance of an H-1B visa where the worker performs his duties at a location outside the premises of the healthcare placement firm. In essence, under the January Neufeld memorandum if the company lacked control over the H-1B visa healthcare worker’s daily activities, end product, did not provide its trade secrets in the performance of her duties, did not routinely evaluate her work, the H-1B visa may not be issued.
One cannot help but notice the clear contradiction between earlier memoranda issued by the USCIS on the same issue. Immigration law watchdog groups such as the American Immigration Lawyers Association is on record threatening to sue the USCIS for issuing a memorandum that alters longstanding legal interpretations without engaging in the “notice and comment” regulations issuance process required in the Administrative Procedures Act. So, will the January Neufeld Memo act to prevent the placement of H-1B visa healthcare workers at much needed underserved areas such as the Appalachian Region?
I think not.
America is an aging society with an exponentially rising demand for qualified healthcare workers. If the practical result of this memo is to deprive designated and documented healthcare shortage areas from the services of much-needed healthcare workers serving in H-1B visa status, that a lawsuit to enjoin the USCIS from effecting such harm would be both warranted and successful.
Our law firm has served the needs of healthcare organizations in processing H-1B visas, J-1 visa waivers, PERM applications as well as National Interest Waivers. Contact one of our experienced lawyers at [[INVALID_TOKEN]].