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09/16/2004 HEALTHCARE IMMIGRATION ALERT:
IMPROVEMENT IN CIS (INS) PROCESSING TIMES
MAY HAVE ADVERSE, UNINTENDED CONSEQUENCES
FOR RECRUITMENT OF FOREIGN NURSES
Over the past several months, the Citizenship Immigration Services (CIS,
formerly INS) has made significant strides in processing immigrant visas
(green cards). The processing of both I-140’s which lead to immigrant visas
being approved at Consulate offices overseas and I-485’s, Adjustment of
Status Applications, being approved in the U.S, have seen steady
improvements. However, as a result of the improvement in processing times,
there may be a return of cut-off dates in the employment-based third
preference categories. Cut-off dates across the board were last seen in 1999
and have remained current in all categories since 2001. In its August Visa
Bulletin, the Department of State stated, “During the past several years,
the Citizenship and Immigration Service (CIS) demand for numbers has been
low. To compensate for the lack of demand from CIS, the Visa Office advanced
the immigrant visa cut-off dates very rapidly to provide sufficient
qualified applicants at our overseas posts and permit the maximum use of
immigration visa numbers. Such advances also meant that many thousands of
additional applicants became eligible to file for adjustment of status at
CIS offices. During recent months, CIS demand for numbers has increased
significantly as they have begun to address their backlog situation. This
increase in CIS demand for numbers is expected to continue, and immigrant
visa cut-off date movement is likely to slow or stop in the family
preference categories. Depending upon the rate at which demand is received,
it may become necessary to establish cut-off dates in employment preference
categories. At this time it is not known when this may happen in fiscal year
2005.” Unfortunately, the Department of State’s dire prediction may appear
to have arrived sooner than many expected.
In its October Visa Bulletin, which is expected to be released to the public
within the next few days, the Department of State states, “Heavy demand was
expected as CIS began to address their backlog and finalize action on such
cases. The Visa Office has been alerting interested parties to this
possibility over the past two years, and this is exactly what has recently
begun to happen. “ Specifically relating to the employment categories, the
Department of State claims, “The increasing CIS use of numbers is likely to
require the establishment of cut-off dates in one or more categories during
FY-2005. Such action is expected in the Employment Third preference category
as early as January.”
By way of background, pursuant to INA §201, the worldwide employment based
preference limit was set at 204,422 for fiscal year 2004. Under INA §202A
the per country limit is set at 7% of the family and employment annual
limit. For fiscal year 2004 the per country limit was set at 30,130. Within
the employment-based preference categories, the first preference category is
capped at 28.6% of the worldwide employment-based preference level, plus any
numbers not required for the fourth and firth preferences. The second
preference category is set at 28.6% of the worldwide employment-based
preference level, plus any numbers not required by first preference. The
third preference category is set at 28.6% of the worldwide employment-based
preference level, plus any numbers not required by the first and second
preferences.
Virtually all of the petitions filed on behalf of registered nurses fall
under the third preference category. This category has the highest
likelihood of having a cut-off date established. Historically, the countries
of India and the Philippines have been over subscribed in the
employment-based preference categories thus making it likely that
individuals from those two countries would be the first to be impacted by
the establishment of cut-off dates.
Although at this time, it is impossible to predict what the actual impact
may be on the petitions for nurses, there is likely to be some impact and
certain steps should be taken by hospitals, recruiting firms, staffing
agencies, etc. to minimize the impact of this pending event. The most
obvious course of action to be taken is to insure that the pool of nurses
from which your company is hiring is not limited to the Philippines and/or
India. Nurses from other countries which are likely not to be oversubscribed
must be considered. There are several other tactics which can be taken to
potentially minimize this coming impact and certainly some strategic
planning is in order.
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