Friday meeting at USCIS to discuss H-1B and medical bodyshops
March 26, 2010, 03:01 PM
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The USCIS posted a meeting notice that could be easily overlooked concerning employer-employee relationships:
The USCIS Office of Public Engagement invites medical professionals and legal practitioners who assist medical professionals to participate in a listening session to hear healthcare industry concerns regarding the January 8, 2010 H-1B memo.
It’s very odd that they don’t give the name of the memo: �Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.�, January 8, 2010, by Donald Neufeld, associate director at the Service Center Operations at the USCIS. [memo image]

This rather mundane sounding memo is creating a huge hubbub in the Indian Press, among immigration attorneys, inside high-tech corporations, and now in the healthcare industry. A firestorm of anxiety was created by the memo because the subject is vital to bodyshops who hire H-1Bs and to the employers that hire them as 3rd party contractors.

The memo is rather complicated and confusing so the details will be discussed in future blogs. It can be simply described as a document that defines employer-employee relationships for H-1B employers. The document is a rat’s nest of bureaucrat blabber and legal mumbo jumbo — read it if you dare!

Overly optimistic computer/IT and engineering activists argue that the Neufeld memo makes it illegal for bodyshops to operate because companies will be required to hire H-1Bs directly instead of using bodyshops. Neufeld’s memo is being hailed as the beginning of the end of the H-1B program. Meanwhile immigration lawyers are stoking the flames of anxiety in industries that hire large numbers of H-1Bs. If these activists were right, by now companies like Tata, Infosys, Manpower, and IBM would have folded.

In my opinion the hubbub over the Neufeld memo is much ado about nothing, which is why I wasn’t interested in mentioning it before now. I ignored the controversy because the memo will have a negligible affect on all but the most sleazy of bodyshops (like APEX) and it will not change the number of Americans that are being replaced by foreign workers with H-1B visas.

The important thing to understand about the Friday USCIS meeting is that hospitals and medical clinics are getting spooked that the memo will complicate the hiring of H-1B doctors and nurses. Healthcare moguls and their expensive lawyers were able to call a meeting to express their anxieties to the USCIS, which followed a collaboration meeting on February 18, 2010 that was mostly attended by high tech.

The healthcare industry appears to taking the Neufeld memo very seriously. They hired the top guns from the American Immigration Lawyers Association (AILA) to represent them in a public meeting in Washington DC. It’s very important to keep in mind that this meeting is being held at the behest of the medical industry – NOT AMERICAN WORKERS. Don’t expect to see anything more than token attendance by the AMA or the nurses’ unions, unless it’s to support the pro immigration side of the equation. The interests of American healthcare workers will be the last thing on most of their minds.

AILA wrote a paper expressing their concerns with the potential for the Neufeld memo to thwart the hiring of H-1Bs. It’s titled: �AILA Response Neufeld ER-EE Memo�

The first thing some of you might notice is that Roxana Bacon is chief counsel for the USCIS. She was the lawyer who represented Sun Microsystems against Guy Santiglia [CNET News]. This is another ugly example of the revolving door in Washington DC and the fact Bacon is involved at all is proof that the meeting is nothing but a corporate love fest. The Obama administration should be ashamed of themselves for allowing Bacon anywhere near our government.

AILA’s chief complaint is that the memo will require more paperwork. They must be crossing their fingers behind their back and holding back the chuckles because more paperwork means more work for AILA, and more profits.

The increase in paperwork and the additional element of unpredictability in the H-1B process will clearly create a chilling effect on employers wishing to hire key workers who will need H-1B sponsorship. Indeed, anecdotal reports from AILA members indicate that this is already occurring in the field.
My advice to those finger weary lawyers is to charge more for doing extra paperwork. Of course most of you that have hired lawyers have seen how the charge goes up every time they work on a document. Surely AILA has figured out by now how to bloat billings!

AILA wrote a long section about how our economy will crash in the unlikely event the Neufeld memo prevented a few H-1B visa holders from entering the U.S. I got news for AILA – the economy has already crashed and one of the reasons is that AILA helped to replace American workers with H-1Bs. Duh!

Here are a few of their other complaints from the AILA response document.

Locum tenens physicisans provide coverage in medical clinic, practice and hospital environments when a short-term need arises … [snipped]… such as on maternity leave. Locum agencies would have a difficult time satisfying the requirements of the Neufeld memo.
Locum agencies??? That’s interesting terminology for doctor bodyshops. Actually H-1Bs are not supposed to be used as a pool of temps that are waiting around for jobs when female doctors have babies, or for any other personal reason doctors may have to take a vacation. Actually, how often do female doctors in rural areas have babies? Maybe something is going on I don’t know about!

This is a good one for those of you who cling to the myth that government research projects can only hire Americans.

Another serious and unintended consequence of the Neufeld Memo is the impact it has on employment relationships in government contracting .. [snipped]. There are many areas of government research, for example, where most H-1B petitioners would be hard-pressed to meet the new requirements of the (Neufeld Memo). Many hundreds of millions of dollars in research projects are staffed in this manner.
Can’t you just see those stimulus funds in the hand of H-1B researchers who are trying to find the cure for our health problems? Personally I think H-1Bs should stay in their own country to solve their own problems: India Failing to Control Open Defecation Blunts Nation’s Growth, Bloomberg, March 4.

The AILA memo is long and it rants, but I can’t resist one more jab:

Other healthcare workers, such as traveling nurses and physical therapists, also work in arrangements. Locum agencies would have a difficult time satisfying the requirements of the Neufeld memo.
This is a false argument because the only traveling most H-1B nurses and therapists do is to move from the Philippines to the U.S. in order to work for bodyshops….. errrrrr…. Locums. Most H-1B interns, physicians, radiologists, etc. are hired directly by hospitals and clinics for liability reasons, and because they want to keep their discount doctors after they get green cards. In contrast nurses and therapists are expendable commodities that are contracted from Locums (bodyshops) that import bodies from the Philippines, India, Africa, and wherever else a foreign national can offer falsified documents that they attended a nursing school. If bodyshops went out of business hospitals would have to accept the responsibility for hiring incompetent nurses – and that would be bad for business!