H-1B Visa Blog

MARCH 2012 VISA BULLETIN ADVANCES IN SOME EMPLOYMENT CATEGORIES

2012-02-09T10:38:00.000-08:00

The U.S. Department of State just issued the March 2012 visa bulletin.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, and Philippines still current, China and India jumped four months ahead to 01 May 10.
Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China jumped one month to 01 January 05; India moved one week to 22 Aug 02.
Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China remains stalled at 22 April 03; one week advance for India to 22 August 02.
Employment 4th – still current in all categories.
Employment 5th – still current in all categories.
Sluggish advancement for those waiting for green cards.

WOULD LIBERALIZING H-1B RULES BRING IPHONE MANUFACTURING BACK TO THE US?

2012-01-30T14:26:00.000-08:00

If you didn't read last weekend's really interesting New York Times article on Apple and why the iPhone is made in China rather than the United States, you really ought to read it. One area the reporters discuss is how US immigration policy has factored in to Apple's decision. The article looks at labor costs and while there are some savings with making the iPhone in China, that is not the primary driver in why the phone is not made in America.
But such calculations are, in many respects, meaningless because building the iPhone in the United States would demand much more than hiring Americans — it would require transforming the national and global economies. Apple executives believe there simply aren’t enough American workers with the skills the company needs or factories with sufficient speed and flexibility. Other companies that work with Apple, like Corning, also say they must go abroad.
One interesting part of the article is discussed at the very end. Steve Jobs hosted a dinner for President Obama and which was attended by leading Silicon Valley executives. A few ideas were discussed on ways to encourage companies to bring manufacturing back home.
At dinner, for instance, the executives had suggested that the government should reform visa programs to help companies hire foreign engineers. Some had urged the president to give companies a “tax holiday” so they could bring back overseas profits which, they argued, would be used to create work. Mr. Jobs even suggested it might be possible, someday, to locate some of Apple’s skilled manufacturing in the United States if the government helped train more American engineers.
Economists debate the usefulness of those and other efforts, and note that a struggling economy is sometimes transformed by unexpected developments. The last time analysts wrung their hands about prolonged American unemployment, for instance, in the early 1980s, the Internet hardly existed. Few at the time would have guessed that a degree in graphic design was rapidly becoming a smart bet, while studying telephone repair a dead end.
This is a point I've raised many times in this column. Immigration is not a zero sum game where hiring a foreign worker means a loss of a job for an American. In the Apple case, tens of thousands of manufacturing jobs could be created in the US to make iPhones if perhaps a few hundred or thousand highly skilled immigrants were readily available to fill positions where there are too few qualified Americans.
That's why I am encouraged to see Newt Gingrich promoting completely eliminating the H-1B visa cap. Our current H-1B cap was created in 1990, before there was an Internet. We are essentially handcuffed by rules set three decades ago for a very different American economy. And we are paying dearly for Congress' unwillingness to modernize our immigration policy.
Here's a link to the article: http://www.nytimes.com/2012/01/22/business/apple-america-and-a-squeezed-middle-class.html?_r=1

TRAVEL FIRMS PRESS FOR SPEEDIER U.S. VISA PROCESSING

2012-01-17T14:45:00.000-08:00

From the New York Times: "Travel groups and convention planners are among the groups pressing the United States to change some of its more onerous visa requirements, arguing that the current rules are keeping out many international business travelers and that a faster, more efficient process would help American companies compete in the global marketplace." Duh. We all know this.
"The waiting time to obtain a visa in some countries can be up to 100 days, according to the trade group U.S. Travel Association, and travelers who do not live in or near a city where an American consulate is located may have to spend hundreds of dollars in travel expenses for mandatory face-to-face interviews." And they are right. Absolutely nothing, about a 100-day wait time to make us any more secure. The low staffing levels and low level of training at some U.S. consulates and embassies not only does not improve our national security but actually hinders it. Requiring personal interview from just about everybody also hurts.
According to the article, global long-haul travel grew by 40 percent from 2000 to 2010, but the United States’ share fell to 12.4 percent from 17 percent. The association calculated that by failing to keep pace, the United States lost 78 million potential visitors who would have generated $606 billion in spending.
The immigration laws in this country needs to change. When a consular officer's focus in each interview is to determine whether someone is a potential immigrant or not without set standards the security factor dwindles and this hurts our economy even further.
http://www.nytimes.com/2012/01/17/business/thwarted-travelers.html?_r=2&partner=rss&emc=rss

NFAP: IMMIGRANTS BEHIND HALF OF VENTURE FUNDED START-UPS

2011-12-21T13:43:00.000-08:00

In case you think that those who say our restrictive immigration policies hurt America's ability to compete and generate good jobs are just spouting off unsubstantiated arguments, here is proof that they're right. From the Wall Street Journal:

Immigrants have started nearly half of America’s 50 top venture-funded companies and are key members of management or product development teams in almost 75 percent of those companies.
Those are the results of a new study by the National Foundation for American Policy, which cites the numbers in calling for changes to immigration policy to make it easier for immigrant entrepreneurs to come to the United States and begin building companies.
Using the “Next Big Thing” list of Top 50 venture-funded companies published in March 2011 in The Wall Street Journal and compiled by research firm VentureSource, a unit of Journal owner News Corp., the research finds that 46 percent, or 23 out of 50, of the country’s top venture-funded companies had at least one immigrant founder.
The research also found that 37 of the top 50 companies, or 74 percent, had at least one immigrant helping the company grow and innovate by filling a key management or product development position. Chief technology officer, chief executive and vice president of engineering are the most common positions held by immigrants in the top 50 venture-backed companies.

The NFAP report notes that legislation is needed to ensure we continue to attract these business superstars. Unfortunately, we have a dysfunctional Congress where most members probably agree that we need changes to attract entrepreneurs but are so cowed by a tiny minority of antis that they're afraid to make even modest changes, much less do anything bold.

The study by the National Foundation of American Policy can be found at:
http://www.nfap.com/pdf/NFAPPolicyBriefImmigrantFoundersandKeyPersonnelinAmericasTopVentureFundedCompanies.pdf

H-1B CAP EXHAUSTED, SO NOW WHAT?

2011-12-08T14:04:00.000-08:00

The H-1B cap has been reached or exhausted for government fiscal year 2012. New visas for cap-subject cases can be filed on April 1, 2012 for a start date on October 1, 2012, for government fiscal year 2013.
What happens now with companies who wish to hire and people who wish to work during this year?
The good news for students currently enrolled in school is that if they graduate in May 2012 and receive Optional Practical Training or OPT, and even for those whose OPTs expire in May or June 2012, they can continue to work if a new H-1B petition is filed for them in April 2012 and a change of status is requested.
Another option would be to file an H-1B for a cap exempt organization. The most common cap exempt organizations are higher education institutions and non-profit research organizations. Employees working for these organizations are not counted against the cap. However, also employees that work for a for-profit company that predominately services these cap-exempt organizations may qualify for an H-1B cap exemption. This is a very common scenario in physician practice. Many physicians work for private practice groups but they actually perform their services in hospitals that are either university hospitals or non-profit hospitals that may be classified as research hospitals and in that case those physicians can still claim their cap exemption and be granted H-1B status in the mean time, even though the visas are gone.
For additional questions, please visit our physicians immigration site:
http://www.physiciansimmigration.com/

H-1B CAP REACHED ON NOVEMBER 22, 2011

2011-11-28T14:39:00.000-08:00

We all knew it was about to be reached but as of late Wednesday November 23, 2011, USCIS has announced that the H-1B cap was reached a day earlier on November 22, 2011, and will reject any H-1B cap applications filed after that day for fiscal year 2012. This is very disappointing because the prior cap update was based on Friday's receipts (just 2 days before) that USCIS announced that there were approximately 3,200 H-1B visas available. While we predicted that the cap would probably be reached by the end of November, the 1,500+ filings per day is a very large volume.
Employees that need a cap-subject H-1B must wait to file their petition until April 1, 2012, for an employment start date of October 1, 2012, which is almost a year out.
Congress should act and increase the quota now!

USCIS UPDATES 2012 H-1B COUNT ON 11/18/2011: AT 61,800

2011-11-22T14:07:00.000-08:00

USCIS just released an H-1B cap update. As of November 18, 2011, they have received 61,800 petitions subject to the regular cap. The advanced degree quota has been already exhausted. That means there were about 3,200 visas as of last Friday so the quota will most probably be exhausted by the end of this week notwithstanding the holiday. The best case scenario would be exhaustion next week if the holiday slows down the filing some. It's crunch time.
Happy Thanksgiving holiday!

Does H-1B Usage Show Economy Picking Up?

2011-11-17T15:25:00.000-08:00

After more than two years of anemic use of the H-1B visa, employers are suddenly applying in bigger numbers for the professional worker visa. As of today, more than 56,000 H-1Bs out of a quota of 65,000 have been used. The quota is likely to be exhausted some time in the next 2-3 weeks. That's two months ahead of last year. Despite what the protectionists say, H-1B usage reflects the market. When the economy is hot, H-1B numbers go fast. And when it's in the dumps, the numbers last a while. H-1B applications are also a leading indicator since employers often file months ahead of when they expect the visa and the candidate to be available. So one might see this news as reason for optimism.

USCIS UPDATES 2012 H-1B COUNT ON 11/14/2011: AT 56,300

2011-11-15T14:59:00.000-08:00

USCIS just issued another H-1B cap update. As of November 14, 2011 (yesterday), they have received approximately 56,300 H-1B petitions subject to the regular cap. The master's degree quota has been reached previously. As there are approximately 65,000 H-1B visas available, there are less than 9,000 visas left. At a rate of about 3,000 visas per week there are 2 or 3 more weeks to go before the cap is reached, but it is very likely that it will be reached sooner as during the last weeks people are filing faster.
File now or lose it until next October 1, 2012.
If you need help, please call us at 770-913-0800 or visit our page at: http://www.visalaw.com/atlanta.html

USCIS UPDATES 2012 H-1B COUNT ON 11/2/2011: AT 50,800

2011-11-09T14:50:00.000-08:00

USCIS issued an H-1B cap update. As of November 2, 2011, USCIS has received approximately 50,800 H-1B petitions subject to the regular cap of 65,000. The advanced degree quota has already been exhausted. There are less than 14,000 visas available, so probably the cap will be reached by the end of November or early December 2011.
Hurry up and file if you need a visa before October 2012!

USCIS UPDATES 2012 H-1B COUNT ON 10/28/2011: AT 49,200

2011-11-01T15:06:00.000-07:00

USCIS just issued another H-1B cap update. As of October 28, 2011 USCIS has received 49,200 H-1B visas towards the cap of 65,000. At an increase of 3,000 visas from last week, the H-1B cap is being reached very quickly, likely to be reached in December. The pace will pick up in the next few weeks. Anyone contemplating filing must do so now before the numbers run out as there are less than 16,000 visas available as of a few days ago.
If you need any help, please contact our office at 770-913-0800 or visit our webpage at http://www.visalaw.com/atlanta.html

USCIS UPDATES 2012 H-1B COUNT ON 10/21/2011: AT 46,200

2011-10-25T11:28:00.000-07:00

USCIS just issued another H-1B cap update. As of October 21, 2011 the H-1B Master's degree quota has been used up. USCIS has receipted an additional 46,200 H-1B petitions subject to the regular cap of 65,000. This is an increase of approximately 3,000 H-1B filings in a one week period so the rate of receipts is increasing.
People who are thinking about applying should not wait because the quota will not stay for long at this rate, probably another 6 weeks, maybe a bit longer.

USCIS UPDATES 2012 H-1B COUNT ON 10/14/2011: AT 43,300

2011-10-19T15:11:00.000-07:00

USCIS just issued another H-1B cap update. As of October 14, 2011, they have received approximately 43,300 H-1B petitions subject to the regular cap of 65,000 plus 19,600 H-1B petitions subject to the master's degree cap of 20,000.
Within the last week of counting, USCIS has received about 2,500 petitions, which represents an uptick from previous months. Maybe the economy is slightly improving or maybe employers are rushing to file as long as there are numbers available but the quota will not last for long. Early next year is my guess on when the quota will be reached.

H-1B USAGE TRACKING CLOSELY WITH LAST YEAR

2011-10-17T15:18:00.000-07:00

If H-1B usage is a barometer of what is happening in the overall job market, the US economy is largely in the same place as last year. The latest data shows 41,000 H-1Bs have been used against the cap of 65,000 after just over six months of filing. Last year we were at 41,900 at about the same time. That is still very light usage compared to prior years. So, U.S. companies are still very slow in hiring workers, including foreign-nationals.

CHECK OUT OUR NEW WEBSITE

2011-10-14T12:11:00.000-07:00

We recently launched a new website targeted to physicians, please check it out: http://www.physiciansimmigration.com/
I will be happy to hear feedback on it.

USCIS UPDATES 2012 H-1B COUNT ON 10/7/2011: AT 41,000

2011-10-12T13:54:00.000-07:00

USCIS just issued another H-1B cap update. As of October 7, 2011, they have received approximately 41,000 H-1B petitions towards the 65,000 annual cap. They have also received approximately 19,100 H-1B petitions towards the Master’s Exemption of 20,000.
The master's degree quota will probably be exhausted in a week.
The regular quota is increasing at a higher rate of about 2,000 per week now, once the master's degree quota is exhausted, the regular cap will move faster.

STEVE JOBS AND IMMIGRATION

2011-10-06T11:43:00.000-07:00

By now you probably all have heard yesterday about the death of Steve Jobs, one of the world's greatest entrepreneurs.
You probably also know that Steve Jobs started Apple with a high school friend in a Silicon Valley garage in 1976, was forced out a decade later and returned a decade later in 1997 to rescue the company. Now it is the most valuable technology company in the world with a market value of $351 billion (largest market cap). He has been responsible for innovation of the personal computer, iMac, iPod, iPhone iPad, and many others.
It led me to think, what would happen if Steve Jobs was born outside the United States? Maybe up north in Canada or down south in Mexico (or anywhere else for that matter)? Apple would probably be dead in the water and no one would have an iPhone or iPad.
The H-1B immigration laws do not support visas for entrepreneurs who are high school or college dropouts (unless they have lots of years of experience under their belt). Also, the current USCIS policies prohibit sponsorship of H-1B visas for entrepreneurs who hold a significant ownership interest in their companies.
Too bad that USCIS doesn't think in these terms. In a recent stakeholders meeting with USCIS headquarters they reiterated that the Neufeld memo is still in effect and they are not accepting any changes to it. Litigation is the only option.

SSA OIG REPORT FINDS H-1B VISA VIOLATORS

2011-09-22T14:15:00.000-07:00

A recent report (September 2001) by the Social Security Administration's (SSA) Office of Inspector General (OIG) reviewed use of a social security number (SSN) by approximately 38,000 H-1B visa holders to whom SSA issued a number.
Based on the results of the OIG's review, they estimated that about 7,131 (18 percent) of the 38,546 H-1B workers to whom SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer. This estimate includes about 4,433 (11 percent) H-1B workers who had posted wages during their audit period from an employer other than their DHS-approved employer. This estimate also includes about 2,698 (7 percent) H-1B workers who had no posted wages from 2007 through 2009.
The writers of the report recommend that to enhance SSN integrity, SSA should contact DHS to establish a data match agreement to assist DHS’ efforts to identify and reduce the number of H-1B workers who are violating their status or using their SSNs for purposes other than to work for their approved employer.
I am not sure how they conducted these checks and whether they considered change of employer petitions that are very frequent that lead to H-1B portability (the ability to work for the new employer as soon as it files a new H-1B petition) but it's only the beginning of additional scrutiny by DHS of H-1B workers.

USCIS UPDATES 2012 H-1B COUNT ON 9/9/2011: AT 32,200

2011-09-16T15:09:00.000-07:00

At just over 1,000 new H-1B petitions per week, USCIS just issued an H-1B cap update. As of 09/09/2011, USCIS has received approximately 32,200 petitions subject to the regular annual cap of 65,000 plus approximately 16,700 H-1B petitions subject to the advanced degree quota of 20,000.
As the advanced degree quota is nearly maxed out, and the regular quota is more than 50% subscribed, employers will start feeling pressure to file in the next few months before the quota is exhausted.

DOL ON PREVAILING WAGE DETERMINATIONS FOR H-1B'S

2011-09-14T13:23:00.000-07:00

The Department of Labor's Office of Foreign Labor Certification (OFLC) issued a statement regarding delays in issuing prevailing wage determinations and H-1B Labor Condition Applications (LCAs).
The short version of the 2-page FAQ is that H-1B prevailing wages are still in backlog because of the H-2B litigation (same as PERM PWDs) and the DOL is recommending to employers to use alternate wage sources to obtain the prevailing wage for example from the OFLC online data center. However, this does not have the safe harbor provision if the employer used its own source rather than wait for the NPWC's determination.
The FAQ is available at: http://www.foreignlaborcert.doleta.gov/pdf/PWD_FAQ_Backlog.pdf

USCIS UPDATES 2012 H-1B COUNT ON 8/16/2011: AT 29,000

2011-09-01T14:57:00.000-07:00

USCIS just issued an H-1B update: as of August 26, 2011, USCIS has received approximately 29,000 H-1B petitions subject to the regular cap plus approximately 15,800 petitions subject to the advanced degree quota.
Demand is slowly increasing but still plenty of visas left.

USDC UPHOLDS DOL PENALTIES IN PHYSICIAN H-1B BENCHING CASE

2011-08-29T15:16:00.001-07:00

The U.S. District Court for the Eastern District of Tennessee in Knoxville upheld the judgment against a medical clinic owner for allegedly violating the INA by cutting the wages of H-1B physicians (benching). Petitioner reduced the wages in part by requiring the doctors to pay J-1 waiver and H-1B fees and costs. Case is Kutty v. DOL No. 3:05-CV-510. The DOL also assessed back wages totaling $1,044,940 and civil monetary penalties in the amount of $108,800.

MAJOR ORGANIZATIONS CALL ON OBAMA TO IMPROVE EMPLOYMENT IMMIGRATION

2011-08-19T13:27:00.000-07:00

Two new reports released by the National Foundation for American Policy (NFAP), an Arlington, Va.-based policy research group say that the Obama Administration should follow through on its promise to provide regulatory relief on employment-based immigration. The report for employment cases is titled “Reforming America’s Regulations and Policies on Employment-Based Immigration”. Authors of the recommendations come from organizations that include the U.S. Chamber of Commerce, the American Council on International Personnel, the American Immigration Lawyers Association, Immigration Works, and others.
Recognizing that legislative solutions are difficult in this political gridlock environment in Congress, the reports suggest administrative and regulatory relief to make sure U.S. companies are able to bring in and keep key employees.
The NFAP report states that “Over the past several months, despite the rhetoric of reviewing regulatory policies, employers have faced the reality of agency actions that delay vital projects, force companies to go without valuable employees and push
work outside the United States”.
What we all know from reality is that business visa adjudicators at USCIS issue now more frequent, burdensome and time-consuming request for additional evidence. The adjudication process is adversarial and USCIS officers are looking for every excuse to deny visa applications these days.
Multiple site visits from USCIS officials, delays and visa refusals at U.S. consulates abroad is also a key problematic area.
Among the recommendations are:
Sharply curtail requests for evidence by USCIS and adjudicate cases faster.
Stop wasting public and private resources by subjecting employers to redundant audits
rather than engaging in focused enforcement.
Allow skilled professionals to file early for adjustment of status prior to when a visa number is available.
Relieve long-time employer sponsors with good track records of certain burdensome
application procedures.
Adjudicate consistent standards for the highest-skilled immigrants in the employment-based 1st and 2nd preferences.
To foster startups, USCIS should rescind the January 2010 Neufeld memo.
The reports can be found on the NFAP website at www.nfap.com.

USCIS UPDATES 2012 H-1B COUNT ON 8/12/2011: AT 25,300

2011-08-17T13:08:00.000-07:00

USCIS just issued an H-1B cap update. As of August 12, 2011, they have received approximately 25,300 H-1B visas subject to the FY2012 cap year starting October 1, 2011. USCIS also received approximately 14,700 H-1B petitions subject to the advanced degree cap.
Still plenty of visas to go, although it is inching up.

TECH LEADERS SAY PROGRESS ON IMMIGRATION KEY TO REVIVING JOBS

2011-08-08T10:57:00.000-07:00

The President’s Council on Jobs and Competitiveness met last week on ways to boost the nation’s struggling economy. The council met at cloud-services provider VM Ware’s headquarters in Palo Alto, California, to solicit ideas on how to jump-start the economy and create more jobs. Council member and AOL co-founder Steve Case was joined by council members John Doerr, a partner with the high-profile Silicon Valley venture-capital firm Kleiner, Perkins, Caufield & Byers; and Sheryl Sandberg, Facebook's chief operating officer. Also present were two nonmembers--Aneesh Chopra, the federal chief technology officer, and Reed Hastings, Netflix's CEO.
A key focus of that meeting was immigration reform. Sandberg and others stated the need for immigration reforms making it easier for companies to recruit talented foreigners in the U.S.
Sandberg said if Facebook had been unable to get an H-1B visa for a Facebook engineer from Spain who was leading a key project after graduating from Stanford, the company would have moved him and his project offshore. She added that other companies such as Google have been forced to do just that because of the problems they have faced in getting work visas and green cards for high-skilled foreigners.
Lawmakers need to push visa and green cards reforms for high-skilled foreigners apart from the broader debate over comprehensive immigration reform.

USCIS UPDATES H-1B FAQS FOR COMPANY OWNERS

2011-08-04T15:16:00.000-07:00

DHS Secretary Napolitano and USCIS Director Mayorkas have announced a series of policy, operational, and outreach efforts, which are aimed at fueling the nation's economy and stimulating investment. They have sent some FAQ's on EB-2 for people with advanced degrees or exceptional ability (and explained the criteria for National Interest Waiver).
More importantly, they have updated the FAQ's regarding the H-1B visa's Neufeld memorandum from January 2010 as it relates to employee/employer relationship. While they have not changed this memo, the new FAQ's are more lenient than the memo, stating, in part, that an owner of a company may still qualify for H-1B status as long as he or she shows that someone else has the right to control them (such as a board of directors or shareholders). The exact Q&A reads as follows:

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

You can read the FAQ's at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD

USCIS UPDATES 2012 H-1B COUNT ON 7/29/2011: AT 22,700

2011-08-04T15:14:00.000-07:00

USCIS has just issued another H-1B cap update. As of July 29, 2011, USCIS has received approximately 22,700 H-1B cap-subject petitions towards the FY2012 cap. USCIS has also received approximately 13,800 H-1B petitions for people with advanced degrees.
At an increase of 1,100 visas from the previous week, the pace is picking up a bit by 10%; let's wait and see if the uptick continues next week, plenty of visas still left.

USCIS UPDATES 2012 H-1B COUNT ON 7/22/2011: AT 21,600

2011-07-28T14:56:00.000-07:00

USCIS just issued another H-1B cap update. As of July 22, 2011, they received 21,600 H-1B petitions subject to the regular H-1B cap for FY2012, plus 13,300 H-1B petitions for foreign-nationals with advanced degrees.
It's still a slow trickle so plenty of more visas to go because of the slow economy.

MICROSOFT LOBBIES CONGRESS FOR IMMIGRATION POLICY CHANGE

2011-07-27T11:56:00.000-07:00

Brad Smith, Microsoft’s general counsel, testified yesterday about the need to overhaul the highly skilled immigration. He testified before the U.S. Senate Judiciary Subcommittee on Immigration, Refugees and Border Security at a hearing on "The Economic Imperative for Immigration Reform".

Smith said Microsoft relies heavily on its ability to recruit top talent from overseas. Because of shortages and intense competition, filling their talent needs remains a serious challenge for Microsoft. For example, in May, Microsoft had 4,551 unfilled job openings, of which 2,629 were for computer science positions. In 2011, it has taken us on average 65 days to fill openings for experienced candidates in core tech positions in the United States. This cannot be achieved (especially not in the short term) through educational improvements to the American workforce.
Smith argued what we all know to be true, that there is a disconnect between a high unemployment rate and the ability to find skilled tech workers from the domestic work force for specific technology occupations. Opening the doors for highly skilled immigrants can help create more jobs here for U.S. citizens and foreign nationals alike. For example, a recent University of Washington study shows that every skilled Microsoft job supports 5.8 other jobs in Washington State.

My opinion is that continuing with inflexible H-1B limits is not helping but hurting the economy -- we all know that when the economy scales back, so does the number of visa applications, so Congress needs to take out the cap altogether and let market forces determine the need for highly skilled workers.

H-1B EMPLOYER OWES OVER $156K IN BACK WAGES

2011-07-26T13:19:00.000-07:00

After an H-1B employer messed up an employee termination, DOL determined that he owes over $156,000 in back wages.
The employer in that case notified the employee about his termination, but failed to notify USCIS and also failed to pay for the employee's return transportation home. The employee departed eventually on his own, but the employer was still ordered to pay back wages throughout the entire H-1B period, even after the employee left the United States.
The case, Limanseto v. Ganze and Company is available at:
http://www.oalj.dol.gov/Decisions/ALJ/LCA/2011/LIMANSETO_KEVIN_v_GANZE_and_COMPANY_2011LCA00005_(JUN_30_2011)_124211_CADEC_SD.PDF

USCIS UPDATES 2012 H-1B COUNT ON 7/15/2011: AT 20,500

2011-07-20T14:30:00.000-07:00

USCIS just issued another H-1B cap update. As of July 15, 2011 they have received approximately 20,500 petitions subject to the FY2012 regular cap, plus approximately 12,800 H-1B petitions under the advanced degree cap.
It looks like a little over 1,000 petitions were filed during the last week, the pace picking up a bit from the last couple of weeks. We'll have to wait and see...

PRINCE GEORGE'S COUNTY SCHOOLS TO PAY $4.2 MILLION FOR H-1B VIOLATIONS

2011-07-14T15:00:00.000-07:00

The U.S. Department of Labor announced that Maryland's Prince George's County Public Schools system has agreed to pay over $4.2 million in back wages to H-1B employees for alleged violations of the H-1B temporary worker program. This is after a DOL investigation found H-1B violations. In a settlement agreement the public school system agreed to pay a whopping $4,222,146.35 (yes, and 35 cents).
They are also to pay $100,000 in civil penalties.
The school system is also debarred from the H-1B program for 2 years after the final decision in the case as well as debarred from filing immigrant visa applications for employees (I-140's).

USCIS UPDATES 2012 H-1B COUNT ON 7/7/2011: AT 19,000

2011-07-14T14:56:00.000-07:00

USCIS just issued another H-1B visa cap update. As of July 7, 2011, they have received approximately 19,000 H-1B petitions subject to the FY2012 regular cap plus approximately 12,200 petitions subject to the advanced degree cap.
This was a slower week for H-1B receipting (probably due to the July 4th holiday), only 600 petitions under the regular cap were receipted (down from 1,000 the week before).

USCIS UPDATES 2012 H-1B COUNT ON 7/1/2011: AT 18,400

2011-07-07T15:21:00.000-07:00

USCIS just issued another H-1B cap update. As of July 1, 2011, they have received approximately 18,400 H-1B petitions subject to the regular cap plus 11,900 petitions subject to the advanced degree cap.
From the previous week that is exactly 1,000 petitions that were received. If it continues at this rate, the cap will be reached into 2012 sometime in Q1.
More updates to follow.

USCIS UPDATES 2012 H-1B COUNT ON 6/24/2011: AT 17,400

2011-07-01T10:06:00.000-07:00

USCIS just issued an H-1B cap update - as of June 24, 2011 USCIS has received approximately 17,400 H-1B petitions subject to the 2012 cap year. It advanced about 1,000 since last week which is still a very slow pace. USCIS has received 11,300 petitions subject to the U.S. master's degree or higher.
Happy 4th of July holiday!

USCIS UPDATES 2012 H-1B COUNT ON 6/17/2011: AT 16,300

2011-06-24T09:59:00.000-07:00

USCIS just issued another H-1B cap update for cap-subject petitions for FY 2012 starting on October 1, 2011.
As of June 17, 2011, USCIS has received approximately 16,300 H-1B cap-subject petitions under the regular cap plus 10,800 H-1B petitions for foreign-nationals with advanced degrees.
It's trickling down very slowly, to mirror the slow economy...

USCIS UPDATES 2012 H-1B COUNT ON 6/15/2011: AT 15,200

2011-06-15T18:50:00.000-07:00

USCIS just issued another H-1B cap update. As of June 15, 2011 they have received 15,200 H-1B petitions subject to the regular cap plus 10,200 petitions subject to the master's degree cap. Still low usage but picking up -- the master's degree cap is more than 50% subscribed which actually shows that almost half of the H-1B applicants so far were people with advanced degrees obtained in the U.S. (which are master's or higher). Kudos for our highly educated H-1B workforce.

US DISTRICT COURT RULES IN FAVOR OF H-1B EMPLOYEE IN EL BADRAWI

2011-06-09T19:19:00.000-07:00

A federal district court judge in Connecticut ruled in favor of an H-1B employee who was arrested by ICE after his I-94 expired but during a period where a timely extension for him was filed with USCIS. The case is El Badrawi v. United States, No. 07-01074 (D. Conn. 2011).
The judge held that ICE lacked probable cause to arrest an H-1B employee who remained in the United States pending the adjudication of a timely filed extension application on his behalf. The judge used the arguments filed in an amicus brief by the Immigration Council and AILA, and recognized that 8 C.F.R. § 274a.12(b)(20) allows an H-1B employee to continue working for up to 240 days after the expiration of an authorized period of stay while a timely filed extension application remains pending.
Because this regulation addresses work authorization granted incident to status, the court reasoned that work authorization is part and parcel of the authorization to be in the country, not a separate matter. The district court also found that the government’s contrary interpretation would present grave due process concerns, since El Badrawi lacked notice that government agents could arrest, detain, and remove him during the period in which he enjoyed continued employment authorization legally.
With supporting declarations from three companies that rely on H-1B workers, the amicus brief argued that arresting non-citizens with pending extension applications could disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program.
Since the government could also not show hardship to it and the basic unfairness that on arm of DHS (USCIS) does not adjudicate the extension fast enough while another arm of DHS (ICE) seeks to remove a person at the same time the balance of equities strongly favored the employee, as the court's just decision shows.

USCIS UPDATES 2012 H-1B COUNT ON 6/1/2011: AT 13,600

2011-06-06T13:12:00.001-07:00

USCIS just issued another H-1B visa cap update for FY2012: As of June 1, 2011, they have received 13,600 H-1B petitions subject to the regular H-1B cap plus 9,300 H-1B petitions for the advanced degree cap. All and all still low usage but it is trickling at about 1,000 petitions per week.

USCIS UPDATES 2012 H-1B COUNT ON 5/20/2011: AT 12,300

2011-05-24T14:48:00.000-07:00

USCIS just issued an H-1B cap update. As of 5/20/2011 they have received 12,300 H-1B petitions subject to the regular cap plus 8,500 petitions subject to the master's degree cap. Only 900 regular petitions have been filed during the last week which is obviously due to the economy. The good news is that if the pace continues, numbers will be available for longer.

USCIS UPDATES 2012 H-1B COUNT ON 5/13/2011: AT 11,200

2011-05-19T12:01:00.000-07:00

USCIS just issued another H-1B cap update. As of 5/13/2011, they have received approximately 11,200 H-1B petitions subject to the regular cap plus 7,900 petitions for people with advanced degree for the 2012 fiscal year cap.

Those thinking the H-1B program is about cheap labor might have difficulty explaining why so few H-1Bs are being requested by businesses. After all, if H-1Bs are a way to save labor costs, wouldn't employers be firing their US workers like crazy in order to take advantage?

The demand for the new fiscal year's allotment of H-1B visas is lighter than it has been for many years - even less than during the height of the recession. As of yesterday, only 11,200 H-1Bs had been claimed and week to week demand since the quota opened up on April 1st has been 1000 to 1200. At this pace, numbers could last until next summer (compared to running out in January of this year).

The real story is that H-1Bs are expensive for employers. They must pay lawyer costs, significant government filing fees and deal with a host of compliance rules including meeting minimum prevailing wage requirements. While the antis will point to anecdotal evidence of abuse here and there, the bigger picture is that employers tend to use H-1Bs when the labor supply is particularly tight and they have little choice. The proof of this is the actual H-1B usage numbers which skyrocket when unemployment plunges and plummet when there are plenty of US workers available. That's why I've been filing a lot more physician H-1B applications than programmer petitions over the last few years.

AILA ON AFFILIATED OR RELATED NONPROFIT ENTITIES

2011-05-13T13:27:00.000-07:00

On May 9, 2011 AILA Liaison sent a memorandum to USCIS Director Alejandro Mayorkas addressing the definition of "affiliated or related nonprofit entity" for H-1B cap-exemption. Over the recent couple of year USCIS has substantially restricted the interpretation of that definition based on the restrictive fee-exemption law. However, AILA proposes a more reasonable and flexible approach to the definition, which is supported by the Immigration and Nationality Act definitions of "affiliated" or "related" that is much less restrictive. AILA proposes the following definitions of institution that are "affiliated" or "related" to a nonprofit or educational entity:

Has been accredited by a federal, state or local educational accrediting agency for an educational purpose based on its affiliation or relationship with an institution of higher education. For example, any nonprofit entity that sponsors a Graduate Medical Education program accredited by the Accreditation Council for Graduate Medical Education (ACGME) should qualify for cap exemption; or

Has been recognized or approved as related to or affiliated with an institution of higher education by another federal or state agency for any purpose. For example, any nonprofit entity sponsoring an “approved medical residency program” for purposes of Medicare reimbursement under 42 C.F.R. §413.75(b) should qualify for cap exemption; or

Has entered into a currently valid affiliation agreement with an institution of higher education that defines the respective rights and responsibilities of cooperating entities; or

Is otherwise related to or affiliated with an institution of higher education based on the totality of facts presented by the petitioner and consistent with the plain meaning of the terms “related” or “affiliated.”

I hope there are some reasonable people at USCIS that will accept a more liberal and fair interpretation of these terms, because the tough situation now is that many organizations that should have been exempted are facing scrutiny from USCIS adjudicators over this issue.

USCIS H-1B CAP UPDATE FOR MAY 5, 2011 - AT 10,200

2011-05-13T13:25:00.000-07:00

USCIS just issued another H-1B cap update -- as of May 5, 2011, they have received approximately 10,200 H-1B petitions that are subject to the regular cap for 2012 plus 7,300 H-1B petitions for people subject to the advanced degree cap.
We'll keep you all posted on how it continues but still low usage.

USCIS POLICY MEMORANDUM GIVING DEFERENCE TO PRIOR H-1B CAP EXEMPTION DETERMINATION

2011-05-04T10:23:00.001-07:00

An Intermim Policy Memorandum (PM) issued on April 28, 2011 by USCIS establishes interim guidance to give deference to prior H-1B cap exemption determinations for nonprofit entities made by USCIS since June 6, 2006. Recently USCIS officers have denied H-1B cap-exemption to a few institutions that were previously accepted as cap-exempt according to the guidelines. The hassle of proving cap exemption for each adjudicator and having different adjudicators reaching different conclusion was truly burdening cap-exempt employers.
After many complaints to USCIS about this issue, it is currently reviewing its overall policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures which basically state that if USCIS previously approved the cap exemption for an institution, it will continue to do so or give deference to the prior determination of it was made after June 6, 2006 (Date of the prior memo).

USCIS UPDATES 2012 H-1B COUNT ON 4/29/2011: AT 9,2000

2011-05-04T08:10:00.000-07:00

USCIS just issued another H-1B cap update -- as of April 29, 2011 they received 9,200 petitions subject to the H-1B cap for FY2012 plus 6,600 petitions subject to the advanced degree cap. For the regular cap, this is an increase of 1,200 since last week, still slow pace but the cap will be exhausted even at this slow cap early next year.

USCIS UPDATES 2012 H-1B COUNT ON 4/22/2011: AT 8,000

2011-04-27T14:18:00.000-07:00

USCIS just released another cap update for FY2012 - as of April 22, 2011, they receipted 8,000 H-1B petitions subject to the regular cap plus 5,900 petitions subject to the advanced degree cap. It looks like 900 H-1B petitions were filed this week based on last week's report, still very low usage but we all know what the economy is like.

WIKILEAKS CABLES DESCRIBE A FEW H-1B FRAUD ATTEMPTS

2011-04-25T12:05:00.000-07:00

Some State Department cables that were released by WikiLeaks show concern for fraud in a few countries whose nationals rarely use the H-1B visas: Mexico, Libya and Iceland. The cables are only a collection of anecdotes explaining attempts of visa fraud or misrepresentation.
The consular officers sending those cables described what the fraud attempt was in each case, such as falsifying pay records or educational qualifications or experience.
These are individual cases only and not a systematic problem with the H-1B visa or its integrity and it is good that these few isolated cases got flagged by the consular officers. This is their job.
For the entire Computerworld article, go to: http://www.computerworld.com/s/article/9215855/WikiLeaks_cables_describe_H_1B_fraud_attempts.

USCIS UPDATES 2012 H-1B COUNT ON 4/15/2011: AT 7,100

2011-04-22T15:46:00.000-07:00

USCIS issued its weekly H-1B cap update -- as of April 15, 2011, it has received approximately 7,100 H-1B cap-subject petitions plus 5,100 petitions for people with U.S. advanced degrees. Still showing low usage for the quota this year.

H-1B USAGE OFF TO SLOW START

2011-04-19T15:23:00.001-07:00

The storyline continues. Last year, 13,500 regular H-1B applications were counted in the first week and 5,600 advanced degree applications. This year 5,900 regular applications were received in the first week and 4,500 advanced degree petitions. USCIS just reported that in the second week of counting, 7,100 regular cases were receipted and 5,100 advanced degree applications. That's roughly the typical weekly usage we saw last year and if the pace doesn't change much, the cap will potentially be hit one to two months later than for FY2011. Later this summer as the cap starts to get a little closer to being reached, we'll start issuing projections of the dates each quota is likely to be filled.

FEDERAL JUDGE PROTECTS H-1B EMPLOYEES FROM WRONGFUL ARREST

2011-04-13T14:43:00.000-07:00

A recent ruling from a federal judge in Connecticut confirmed that as the American Immigration Lawyers Association (AILA) argued in an amicus brief, the government may NOT arrest H-1B employees for whom there are pending and timely filed extension applications. The decision in El Badrawi v. United States, was issued by U.S. District Judge Janet C. Hall, relied mainly on the federal regulations that allow H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Thus, when the government permits the initiation of removal proceedings during this period would therefore be unfair to employees and employers alike, according to the decision. The plaintiff in this law suit is a Lebanese national, who was employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. The amicus brief contained supporting declarations from three companies that rely on H-1B workers, arguing that arresting non-citizens with pending extension applications would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program. The decision is wonderful and really uses common sense (something the Federal Government is often lacking) - why would someone who can legally continue working while an extension application is pending could be arrested, detained and deported? The decision really was the right thing to do. What a sad set of circumstances for this plaintiff.

USCIS ISSUES F-1 H-1B CAP GAP Q&A

2011-04-11T10:50:00.000-07:00

USCIS just issued a cap gap questions and answers page dealing with the question of who is eligible to benefit from the gap cap rule. The USCIS regulations allow people who were in F-1 OPT status with pending or approved H-1B petitions to remain in valid F-1 status (and have continued employment authorization) even though the F-1 status or EAD would otherwise expire. Because graduates of most U.S. universities graduate in May or June, and the H-1B start date cannot be sooner than October 1 (because that is when the U.S. government's fiscal year starts) then there is a gap in status between the expiration of the F-1 status (or OPT) and start date of H-1B, known as cap-gap. In the past, these beneficiaries would have to switch to another status or leave the U.S. but under the new rules this can be avoided if an employer files an H-1B visa petition for them with a start date of October 1, 2011 and a change of status from F-1 to H-1B is requested on the I-129 petition. The other main requirements for that to happen are that the H-1B petition would be timely filed (before the expiration on the student's I-20 or OPT expiration date or within the 60-day grace period after expiration), and non-frivolous. Once the extension is filed, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to depart the United States. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. The student should then return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status. In order to enjoy from the cap-gap regulation, the students must remain in the United States and cannot leave, otherwise their status would be terminated and they would have to wait abroad until their H-1B start date of October 1 (well technically they could enter up to 10 days before that, which would be September 21). The entire Q&A is available on the USCIS public website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD

STATE DEPARTMENT REVISES H-1B LICENSE GLITCH

2011-04-08T16:15:00.000-07:00

The U.S. State Department issued a correction to the Foreign Affairs Manual. 9 FAM 41.53 N4.1 revised on 3-31-11 states as follows: "The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States." CT:VISA-1635. This is not new news because USCIS has been applying this standard for years, but it was not reflected in the consular regulations. Of course, none of this would matter if the government will be shut down and consulates will cease issuing visas.

USCIS UPDATES 2012 H-1B COUNT ON 4/7/2011: AT 5,900

2011-04-08T14:52:00.000-07:00

After USCIS starting accepting H-1B petitions for Fiscal Year 2012 (Starting on October 1, 2011) as of April 1, 2011, it just issued an H-1B count update. As of April 7, 2011, it has receipted 5,900 petitions subject to the regular H-1B cap plus 4,500 petitions subject to the H-1B Master's degree cap. As widely anticipated, the H-1B usage by employers still remains low as the H-1B was just hit in January 2011 for the last fiscal year. However, if the economy rebounds in a big way, the numbers will not suffice for long. As government shutdown is feared as of next week, the Department of Labor will cease processing labor certificate application (LCA's) in connection with H-1B petitions, even though USCIS will continue to work as normal. However E-Verify will not work in case of a government shutdown.

WHAT FEDERAL GOVERNMENT SHUTDOWN MAY LOOK LIKE

2011-04-06T08:22:00.000-07:00

Courtesy of Greg Siskind: By this weekend, the federal government's funding is set to run out and unless there is a breakthrough in negotiations between members of the two parties, we could see a shutdown for the first time in more than 15 years. How will this affect immigration services? While we don't have a lot of experience with government shutdowns in this country, we expect that only "essential" services will continue. That means law enforcement, fire fighting, the military, utilities and prisons. Air travel is considered essential so air traffic controllers and TSAs will continue to work. And so will agencies that are funded by application and user fees. So which immigration services are to be hit? According to AOL News, the State Department will be one of the highest profile agencies to be affected: The U.S. tourism and airline industries reportedly lost millions of dollars after the 1995-96 shutdowns halted visa and passport processing. Approximately 200,000 U.S. passport applications went unprocessed during the shutdowns and 20,000 to 30,000 foreign visa applications were unprocessed. Emergency passport and visa processing should be available during the shutdown. USCIS Service Centers and local district offices should operate as normal because they are funded primarily through application fees. It's not clear yet what's going to happen at the Department of Labor. But it is very possible the iCert portal used for labor certifications and H-1B labor condition applications could be closed during the shutdown and H-1B processing could be delayed. ICE facilities will continue to detain people and the court systems - including presumably immigration courts - will operate as normal. But according to AOL, hiring at these agencies may be frozen: The last shutdown had a number of consequences for law enforcement and public safety operations, including reported cancellation of hiring 400 border patrol agents and cancellation of federal law enforcement recruiting programs. Processing of immigrants and non-immigrants at ports-of-entry should continue, but there could be staffing cutbacks that could cause delays. Of course, we're bound to be surprised by what develops and I'll try to report to readers news as it becomes available. I'd also welcome reports on what people are learning on their own.

PRINCE GEORGE'S COUNTY SCHOOLS CHARGED WITH H-1B VIOLATIONS

2011-04-06T08:12:00.000-07:00

According to a press release by the U.S. Department of Labor (DOL), Maryland's Prince George's County Public Schools system was found a willful violator of the H-1B laws and regulations. DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring the payment of $4,224,146 in fees. Due to the willful nature of some of the violations, PGCPS has been assessed an additional $1,740,000 in civil money penalties and may be debarred from filing new petitions, requests for extensions or requests for permanent residency for foreign workers under any employment-based visa program. Violations are willful when an employer knew or acted in reckless disregard for whether its actions were impermissible under the law. We are not sure what types of fees the DOL found unlawful that were paid by the employees (whether worker retraining fee, USCIS filing fees or attorney fees) but due to the large amount at stake, litigation by PGCPS may be pursued... The DOL press release can be found here: http://www.dol.gov/opa/media/press/whd/WHD20110357.htm

MAN SENTENCED TO PRISON FOR FAKING H-1B TECH WORKER PETITIONS

2011-04-01T10:38:00.000-07:00

From the San Francisco Chronicle: A Concord man was sentenced on Friday to six months in prison and three years of supervised release, for making false statements on 11 applications for high-technology worker visas, United States Attorney Melinda Haag and Patrick Durkin, Special Agent In-Charge of the Diplomatic Security Service announced. Chennupati admitted that between April 1, 2008 and March 3, 2009, he submitted 11 foreign worker petitions to U.S. Citizenship and Immigration Services that contained counterfeit job offer letters from the Gap Corporation, Wells Fargo Bank and Genentech. Chennupati also admitted that he falsely stated on the foreign worker petitions that he had 11 jobs available from these companies. According to the U.S. Attorney's Office, no high-technology worker visas were issued from Chennupati's 11 fraudulent applications. Many of the allegations lodged by critics of the H-1B program regard things already against the law. Better enforcement of existing law and focusing on bad actors is the answer instead of making things ridiculously difficult for the vast majority of employers playing by the rules. Article can be found at: http://www.sfgate.com/cgi-bin/blogs/incontracosta/detail?entry_id=85830

H-1B HEARING TODAY IN THE HOUSE

2011-04-01T09:36:00.000-07:00

The House Immigration Subcommittee is holding a hearing on H-1B visas today. The witness list includes USCIS' Donald Neufeld of Neufeld Memo fame, Bo Cooper, a former USCIS general counsel who now practices immigration law, Ron Hira, a professor and well-known H-1B critic and Bruce Morrison, a former Congressman who chaired the House Immigration Subcommittee and has worked privately on immigration advocacy projects over the years. I hope something good will come out of this, like increasing the cap and getting rid of some ridiculous fees (although I doubt it).

USCIS BACKS DOWN FROM TEACHING HOSPITALS AFFILIATION ISSUES

2011-03-31T08:06:00.000-07:00

USCIS is retreating from its recently changed policy challenging the affiliations of America's teaching hospitals with America's medical schools. For the 10+ years that non-profit institutions could claim H-1B cap exemptions if they had affiliations or were otherwise related to colleges or universities, hospitals that trained doctors in their residency and fellowship programs - programs that are usually run in close coordination with a medical school - have been able to work outside the normal H-1B caps. And that makes sense since we depend on these teaching hospitals to supply this country with our doctors. That's why Medicare actually underwrites the salaries paid to medical residents. Plus, we've got a massive shortage of doctors so subjecting teaching hospitals to H-1B caps works against resolving this crisis. After complaints started quickly coming in from around the country, USCIS has apparently gotten the message and announced that while it works out a more formal policy position, it will revert back to previous policy. Here is the announcement: U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education. Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006. USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance. March 16, 2011 Courtesy of owr own Greg Siskind.

2012 H-1B FILING SEASON STARTS

2011-03-09T10:44:00.000-08:00

The H-1B filing season for the 2012 cap year has started. The first day to file for an October 1, 2011 start date is April 1, 2011. Since the proposed registration has not yet been implemented, we are still filing based on the same system.
Last year the H1B quota was not used up in April and visas remained available until just a few weeks ago in late January. I doubt the cap will be hit this year on the first day or any time during the first month but believe that it’s better to play it safe at least in regard to the cases you know about.
Therefore, employers wishing to file for employees should prepare to do so now, because we can never foresee in advance how fast the quota will move and how many numbers will be used. Since these petitions cannot be filed immediately any more (they require a certified LCA to be filed), all steps must be completed prior to filing.
If you are interested in filing an H-1B petition or would like additional information, please visit our office webpage at: http://www.visalaw.com/atlanta.html or email me at kweinstock@visalaw.com.
For our doctor or physician clients, please check out our new site: http://www.physiciansimmigration.com.

USCIS PROPOSES H-1B REGISTRATION SYSTEM

2011-03-02T14:14:00.000-08:00

USCIS is publishing tomorrow a proposed rule that could save U.S. businesses more than $23 million over the next 10 years by establishing an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in the H-1B category.
The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap. While the filing fees are returned to employers if their application is not accepted, this proposed rule would eliminate the need for these employer to pay attorney fees and go through the administrative burdens (such as filing and posting the LCA -- Labor Condition Application) if they are not selected for processing.
Under the proposed rule, employers seeking to petition for H-1B workers subject to the cap would register electronically with USCIS. This process would take an estimated 30 minutes to complete. Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available cap visas. Employers would then file petitions only for the selected registrations.
The proposed rule was posted at the federal register today at:
http://www.ofr.gov/OFRUpload/OFRData/2011-04731_PI.pdf
This is followed by a 60-day comment period that will allow the general public to provide input on the proposed system. I am sure AILA as well as other organizations will contribute to the comments. The comment period runs for 60 days, beginning March 3, 2011, and ending on May 2, 2011. Formal comments should be filed through http://www.regulations.gov.

USCIS REACHES FY 2011 H-1B CAP

2011-01-28T12:50:00.000-08:00

USCIS just announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. January 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.
USCIS will reject cap-subject petitions for new H-1B workers in FY2011 that arrive after Jan. 26, 2011. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on January 26, 2011 in order to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying filing fees.
Too bad... we were hoping for a few more days' leeway but that's out of anyone's control.

USCIS UPDATES H-1B CAP COUNT FOR JANUARY 21, 2011 -- AT 62,800

2011-01-24T08:26:00.000-08:00

USCIS just issued another H-1B cap update. As of January 21, 2011 they have received 62,800 H-1B petitions for FY 2011. The master's degree cap has already been exhausted and it appears that USCIS is receiving a little more than 2,000 H-1B petitions that are subject to the cap each week so the cap will probably be reached later this week or early next week at the latest at this pace. You should file quickly!

USCIS UPDATES H-1B CAP COUNT FOR JANUARY 14, 2011 -- AT 60,700

2011-01-19T15:01:00.000-08:00

USCIS just issued another H-1B cap update for January 14, 2011. As of that date, they have received 60,700 H-1B cap-subject petitions. There are approximately 4,000 H-1B visas left and at the current usage rate of 2,000 per week there is only one or two weeks left until the cap will be reached. Stay tuned...

NEW GAO REPORT RECOMMENDS REFORMS TO H-1B PROGRAM

2011-01-17T14:01:00.001-08:00

A recent report by the Government Accountability Office (GAO) of the H-1B visa program recommends reforms to minimize the risks and costs of the current program.
The January report reiterated what we all know -- that during the past decade the demand for new H-1B workers tended to exceed the cap.
What is interesting is that over the last decade, over 14 percent of all initial petitions were submitted by cap-exempt employers, and only a few employers (fewer than 1 percent) garnered over one-quarter of all H-1B approvals. Many of the problems associated with the H-1B program are attributed to these few employers, most of which are staffing businesses that act as middlemen for employers that are not held accountable for compliance with the rules of the program.
According to the report, these staffing arrangements (that place workers at sites of other employers) are difficult to pinpoint because of lack of disclosure requirements, but the GAO estimated that 10 of the top 85 H-1B hiring companies in fiscal 2009 were staffing businesses, garnering nearly 11,456 approvals.
With the staffing arrangement comes the biggest challenge with compliance with the H-1B program because the end-client is not responsible for the worker, but the staffing company is. Also, there are many chains of staffing companies - that often place an H-1B worker with a company that then places the worker with another company — adding middleman layers that makes enforcement more difficult.
A large number of the H-1B program complaints have been filed against staffing businesses. In the Northeast region, which receives the highest number of H-1B complaints, nearly all the complaints received involve staffing companies. Among the most frequent types of violations is failure by the employer to pay the required wage rate.
The Neufeld memo from January 2009 limited significantly the chances of a staffing company to obtain an H-1B approval. We'll wait and see what other steps will be taken to increase program compliance. However, let's hope that not all H-1B employers are going to suffer.
The report can be found here: http://www.gao.gov/new.items/d1126.pdf

USCIS UPDATES H-1B CAP COUNT FOR JANUARY 7, 2011 -- AT 58,700

2011-01-14T09:41:00.000-08:00

USCIS just issued another H-1B cap update -- as of January 7, 2011, they have received 58,700 H-1B petitions subject to the cap. As a reminder, the advanced degree cap of 20,000 was reached earlier in December and all applicants now are filing under the regular cap. It will not be long now before it will be reached. Anyone thinking of applying is urged to start...

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 31, 2010 -- AT 57,300

2011-01-05T13:37:00.001-08:00

USCIS just issued another H-1B cap update -- as of December 31, 2010 they have received 57,300 H-1B petitions subject to the regular cap plus 20,000 under the advanced degree quota, which maximum for this fiscal year has been reached. With less than 8,000 visas left, we project that the H-1B exhaustion target date will be in the end of January or beginning of February at the latest. Better hurry and file now if you don't want to wait until October.

USCIS PROPOSES REGISTRATION FOR H-1B EMPLOYERS

2011-01-03T12:00:00.001-08:00

USCIS is proposing to amend its regulations governing H-1B petitions subject to the annual numerical limitations (65,000 for regular cap plus 20,000 for master's and advanced degree cap). This rule proposes an electronic registration program for petitions subject to numerical limitations. Right now USCIS accepts petitions as part of a lottery system if more than the annual limit of H-1B petitions are filed in the first couple of days in April. Currently the cap is not maximized soon because of the economic downturn; but that is a temporary issues that will be abated in the near future. USCIS deems this action necessary because the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. USCIS is proposing that petitioners register first and only if the registration is successful the petitioner can then file the H-1B petition.
USCIS estimates that this rule will result in a net benefit to society. That is because the petitioners have to complete the H-1B package, prepare all documents, pay the attorney fees, etc., and submit the application without any certainty that an H-1B cap number will ultimately be allocated to them. The new Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS by reducing costs for some employers (especially those not allocated a cap number).
This definitely makes a lot of sense and is a step in the right direction; there is a significant downside to that is since there is no real cost to register, what happens if companies register multiple beneficiaries only at the end after they get selected not filing the H-1B petitions and just wasting numbers for those who need them?

EXPORT CONTROL QUESTIONS SUSPENDED FOR 60 DAYS

2010-12-22T10:09:00.000-08:00

As continuation of my previous post, the Commerce Department has confirmed to AILA liaison that USCIS will suspend the requirement that H-1B, H-1B1, L, and O-1A petitioners complete the export control/ITAR questions in Part 6 on the new I-129 form for a period of 60 days, but will require petitioners to use the new I-129 form (rev. Nov. 23, 2010) for petitions postmarked December 23, 2010, or after. Perhaps they are trying to comply with the notice requirements?

H-1B FEDERAL EXPORT REQUIREMENT CHANGES

2010-12-22T10:02:00.000-08:00

On November 23rd, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker. The new form requires petitioners to take additional steps to ensure that federal export compliance is properly evaluated and that petitioner’s attestations are accurate.
What is export? Could be export to a foreign country. However, export of technology to foreign nationals may also deemed export which is prohibited in certain cases. The new Form I-129 includes a new Part 6, called “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”), and (ii) made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.
The new forms includes the following language in Part 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:
(i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR
(ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to controlled technology or technical data by the beneficiary unless and until the petitioner has received the required license or other authorization to release it to the beneficiary.
If n export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered “technologies” without first obtaining the requisite license to cover the foreign worker. It is very important that petitioners not make a misrepresentation on Form I-129 in this regard, which in itself could be problematic (and violating Federal law).
While the new form is effective now, petitioners may continue using the former version of the form (which does not include the reference to export license requirements) until December 23, 2010.
More due diligence will be now required of petitioners applying for H-1B workers.

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 17, 2010 -- AT 53,900

2010-12-22T07:51:00.000-08:00

USCIS just issued another H-1B cap update. As of December 17, 2010, it has received 53,900 H-1B petitions subject to the regular cap plus 19,700 H-1B petitions subject to the advanced degree H-1B cap. The advanced degree cap is very close to being exhausted within about a week (if it hasn't already). Once it is exhausted, the regular H-1B petitions usage rate will increase.

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 10, 2010 -- AT 52,400

2010-12-15T14:33:00.000-08:00

USCIS just issued another H-1B cap update -- as of December 10, 2010, it has received 52,400 H-1B petitions subject to the regular cap plus 19,100 H-1B petitions subject to the master's cap or advanced degree (which is almost run out at 20,000 per year). It is getting closer to exhaustion.

PERI SOFTWARE SOLUTIONS DEBARRED FROM H-1B, TO PAY $638K IN BACK WAGES

2010-12-08T13:11:00.000-08:00

Following a consent order obtained by the U.S. Department of Labor, Peri Software Solutions, Inc., and its owner, Saravanan Periasamy, have agreed to pay $638,449 in back wages and interest to 67 workers for violating the H-1B provisions of the Immigration and Nationality Act.
The Newark company sponsored the H-1B non-immigrant workers to work as programmer analysts across the country. Under the order, Peri Software Solutions, Inc., and Periasamy also must pay $126,778 in civil money penalties and interest for failing to provide notice of the filing of labor condition applications at each place where any H-1B worker was to be employed and for filing lawsuits against H-1B workers for early cessation of employment. The company and Periasamy will be debarred from participating in the H-1B program for one year.
These DOL penalties should remind all H-1B petitioners to comply with the regulations...

USCIS UPDATES H-1B CAP COUNT FOR DECEMBER 3, 2010 -- AT 51,200

2010-12-08T11:49:00.000-08:00

USCIS just issued another H-1B cap update. As of December 3, 2010, they have received or approved approximately 51,200 H-1B visa applications under the regular cap plus 18,700 under the advanced degree cap. Less than 15,000 H-1B visas remaining, with the pace expected to pick up somewhat when the master's degree quota is exhausted.

NEW H-1B FILING FEES ARE IN EFFECT

2010-12-07T13:02:00.000-08:00

Pursuant to Public Law 111-230, certain H-1B visa petitions now require payment of additional $2,000 in filing fees. These additional fees are applicable to petitioning employers who employ 50 or more employees in the United States and 50% of the petitioner’s employees are in H-1B, L-1A or L-1B status. These fees are required to be filed only for initial filings for a new beneficiary.
Until the Form I-129 petition for nonimmigrant worker is revised, USCIS recommends that all H-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter. The fee, statement, notation, or other evidence should be provided with each petition submitted. Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence to determine whether the additional fee applies to the petition.
The following is a sample statement that the petitioner could use:
"By this statement we confirm that our company (the petitioner) is not required to
pay the H-1B filing fee under Public Law 111-230. Our business does not have
more than 50 percent of our employees in the United States in H-1B or L-1
nonimmigrant visa status. Therefore, we are not required to pay the additional
filing fee."

USCIS UPDATES H-1B CAP COUNT FOR NOVEMBER 24, 2010 -- AT 50,400

2010-12-03T11:42:00.000-08:00

USCIS just issued another H-1B cap update -- as of November 24, 2010, USCIS has received 50,400 cap-subject H-1B petitions, plus 18,400 H-1B petitions subject to the master's degree and higher. Less than 15,000 H-1B visas left and the pace of use is picking up.

USCIS UPDATES H-1B CAP COUNT FOR NOVEMBER 19, 2010 -- AT 48,977

2010-11-24T12:35:00.001-08:00

USCIS updated its weekly count of FY2011 cap-subject H-1B petitions. As of November 19, 2010, approximately 48,977 H-1B cap-subject petitions were receipted. USCIS has receipted 17,836 H-1B petitions for aliens with advanced degrees. As the cap approaches and expected to be reached over the next 30-60 days, probably more H-1B petitions will be receipted on a weekly basis than in the past.

USCIS UPDATES H-1B CAP FOR NOVEMBER 12, 2010 -- AT 47,800

2010-11-19T12:12:00.000-08:00

USCIS issues another update for the H-1B quota for this year: according to the USCIS count of FY2011, as of November 12, 2010, approximately 47,800 H-1B cap-subject petitions were receipted for the regular cap and 17,400 H-1B petitions were receipted for the advanced degrees quota.

USCIS UPDATES H-1B CAP COUNT FOR NOVEMBER 5, 2010 -- AT 46,800

2010-11-11T10:46:00.000-08:00

USCIS issued another H-1B cap update. As of November 5, 2010, they have received approximately 46,800 H-1B petitions subject to the regular cap plus approximately 17,200 H-1B petitions subject to the master's degree cap for people with U.S. advanced degrees. Still plenty of visas left for the next couple of months, but the cap will probably be exhausted by January or February and then no more visas until next October.

H-1B CAP AS OF OCTOBER 29, 2010 AT 45,600

2010-11-03T19:20:00.000-07:00

USCIS just issued another update of the FY 2011 H-1B cap: the regular cap at 45,600 and the advanced degree cap at 16,700 (very close to its limit).

GREG SISKIND MOVES H-1B EXHAUSTION TARGET TO FEBRUARY 2011

2010-10-29T08:50:00.000-07:00

Greg Siskind, our forecasting guru blogs that 1500 H-1Bs were claimed in the last week and just over 20,000 remain for the fiscal year. Based on a four week rolling average (1175), he is projecting the target will be exhausted in 17 weeks which will be February 23, 2011. Previously, he had been projecting March, but the overall usage of H-1Bs has been somewhat busier in the last month than in previous months. The masters cap usage this past week was 500 and the monthly average is 450. There are 3,800 H-1Bs left of 20,000 and he is projecting that cap will be exhausted in late December, a projection that has stayed the same for several months.

USCIS UPDATES H-1B CAP COUNT FOR OCTOBER 22, 2010 -- AT 44,300

2010-10-29T08:44:00.000-07:00

USCIS issued another H-1B cap update. As of October 22, 2010, they have received approximately 44,300 H-1B petitions subject to the regular cap plus approximately 16,200 H-1B petitions subject to the master's degree cap for people with U.S. advanced degrees. Still plenty of visas left for the next couple of months, but don't be surprised if the cap is exhaused by January. We'll wait and see how it goes.

H-1B EXHAUSTION TARGET: MARCH 15, 2011

2010-09-16T12:32:00.001-07:00

New numbers are out on H-1B usage and the past week showed last week's substantial pickup was just noise. Only 800 visas were claimed against the 65,000 cap, half of last week's total and somewhat less than the typical weekly usage we've seen over the summer. 37,400 H-1Bs have been counted now. I'm moving my exhaustion projection date back a week. My target is based on a rolling four week usage average so variations from week to week are discounted. Usage over the last month has been about 1075 H-1Bs per week.

On the masters cap of 20,000, the pace remains steady with 300 petitions counted in the last week and total usage of 13,700. At that pace, we will likely run out sometime around mid-January.

SENATE PASSES BORDER BILL THAT HIKES L-1 AND H-1B FEES FOR SOME EMPLOYERS

2010-08-08T20:07:00.001-07:00

The Senate has passed an emergency border enforcement bill that provides $600 million for increased security on the southern US border. The $600 million will come from raising fees on staffing companies. The fee will increase by $2250 for each L-1 visa application for companies that employ 50 or more workers if 50% of the workforce is on an H-1B or an L-1. The fee will increase by $2000 for each H-1B application for companies with 50 or more workers with 50% or more in L-1 or H-1B status.That means L-1 fees will now be about $3100 per worker for these firms and the H-1B fees will be about $4200 for regular cases and $5200 for premium processing cases.

Some media reports have stated that the language only applies to foreign-based companies. That is not correct. Also, reports have said that it only applies to companies that have been abusing the program. There is nothing, however, that protects companies that pay their employees well, treat them fairly and are complying in all respects with the H-1B rules.

Here is the exact language:

SEC. 402. (a) Notwithstanding any other provision of this Act or any other provision of law, during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)) shall be increased by $2,250 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are nonimmigrants admitted pursuant to section 101(a)(15)(H)(i)(b) of such Act or section 101(a)(15)(L) of such Act.

(b) Notwithstanding any other provision of this Act or any other provision of law, during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) shall be increased by $2,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant’s employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act.

According to Politico,

The Senate bill includes $300 million for 1,500 additional Border Patrol agents, Custom and Border Protection officers and Immigration and Customs Enforcement personnel; $196 million for Justice Department programs; $32 million for two more drones; and other money for things like communications equipment and new facilities.

One would hope that paying north of $5000 per worker in H-1B filing fees will quiet some of the critics who argue that the program enables these foreign "job shops" to bring in cheap labor. With the requirement to pay the prevailing wage and this new much higher fee (which cannot be passed to the employee), hiring H-1Bs will be a much more expensive proposition for the larger staffing companies. But somehow I doubt this will quiet the critics because this is not about leveling the playing field. It's about eliminating the competition.

USCIS UPDATES H-1B CAP COUNT FOR JULY 30, 2010 -- AT 27,300

2010-08-06T07:08:00.000-07:00

USCIS just issued another H-1B cap update. As of July 30, 2010, they have received approximately 27,300 H-1B petitions subject to the regular cap plus approximately 11,600 H-1B petitions subject to the master's degree cap. This is double the rate from last month - about 1300 petitions per week versus 600 or 700 we saw a couple of months ago. Still plenty of visas left. We'll wait and see how it goes.

BROADGATE V USCIS UPDATE -- PLAINTIFFS' REPLY

2010-08-03T13:07:00.000-07:00

Plaintiffs in the Broadgate lawsuit filed their reply to the government's response and opposition. In their 26 page brief, they argue that the Neufeld memorandum regarding employer-employee relationship amends amends the regulations by adding new
or different criteria for determining whether an employer-employee relationship exists and therefore it is a legislative rule requiring notice-and-comment rulemaking. Plaintiffs argue that this memorandum is a legislative rule because it amends a legislative rule by changing the substantive law, it binds agency personnel to use new criteria and directs agency personnel to find that third-party information technology (“IT”) placement services firms, such as the Plaintiff companies, are not United States employers (and thus cannot sponsor H-1B employees), and it affects the public by effectively banning a form of business that had been lawful prior to the issuance of the memorandum.
Plaintiffs also argue that the memorandum is inconsistent with the organic legislation and that the Government has failed to comply with the Regulatory Flexibility Act, among other laws in issuing this memorandum.
The Plaintiffs' response clearly shows how each of the government's arguments fail. The government claims that the memorandum is not final agency action, however since it is binding on the agency and if the court finds it to be a legislative rule, it is by definition a final action. The government also argues that the memorandum is not a legislative rule, which the Plaintiffs show how it changes the prior legislative climate and conflicts with the regulations. The government's argument that the memorandum’s definition of employer-employee relationship is consistent with the organic legislation is clearly without merit as that regulatory definition is very different (and much less restrictive) than the 11-factor test of the Neufeld memo. Finally, the government argued that Plaintiffs have failed to demonstrate irreparable injury sufficient to justify preliminary relief, which is again questionable as their H-1B visas have been denied and will continue to be denied as the memo is binding on all agency personnel.
We're awaiting the judge's decision on this preliminary injunction. I really hope the agency will lose on this one.

USCIS UPDATES H-1B CAP COUNT FOR JULY 23, 2010 -- AT 26,000

2010-07-30T08:25:00.000-07:00

USCIS just issued another update that as of July 23, 2010 they received approximately 26,000 H-1B petitions towards the 2011 fiscal year under the regular cap plus 11,300 H-1B petitions for applicants with U.S. advanced degrees. The jump to 1,200 petitions in a week is about double the 600 per week average we have been reporting over the last few weeks -- not sure if this is a fluke or sign of slight recovery, remains to be seen.

AILA AND ASC FILES LAW SUIT AGAINST USCIS TO RELEASE H-1B REVIEW PROCESS

2010-07-22T12:42:00.000-07:00

On July 20, 2010, AILA (American Immigration Lawyers Association) and the AIC (American Immigration Council) file a law suit against USCIS in the U.S. District Court for the District of Columbia for declaratory and injunctive relief, following the denial of two FOIA requests seeking disclosure of DHS and USCIS documents concerning H-1B review and processing procedures.
AILA had pursued disclosure of the documents through Freedom of Information Act (FOIA) requests which were denied in full by the government. In its complaint filed in U.S. District Court for the District of Columbia, AILA seeks the court's intervention to compel the government to release the requested records.
The law suit was filed because since 2008, USCIS has implemented new, more stringent procedures for review and processing for H-1B visas and has dramatically increased the frequency of unannounced worksite inspections - expected to reach 25,000 visits in 2010 alone - in connection with H-1B cases. Yet USCIS has kept secret the rules and guidelines related to the review process. Because of the lack of publicly available information on the government's heightened scrutiny of H-1B applications, it is extremely difficult for businesses to anticipate and meet agency expectations during the application process and thus the information was requested.
The documents should have released these documents as a matter of course, even without a FOIA, but the fact that the FOIAs were denied is counter to President Obama's directives for a more open and transparent government.
The law suit was filed under the APA (Administrative Procedures Act) seeking transparency to the reliability and fairness of an adjudication process. It will be interesting to see what the government will say in response. We'll keep you updated.

USCIS UPDATES H-1B CAP COUNT FOR JULY 16, 2010 -- AT 24,800

2010-07-21T13:55:00.000-07:00

USCIS updated that as of July 16, 2010, it has received 25,300 petitions for H-1B applicants under the regular cap plus 11,000 under the advanced degree cap.
I'll keep posting as USCIS updates...

BROADGATE V USCIS UPDATE - GOVERNMENT'S RESPONSE

2010-07-16T10:12:00.001-07:00

In a development in the Broadgate V. USCIS law suit filed against USCIS for injunction against the implementation of the January 8, 2010 Neufeld memo which changed the definition of employer-employee definitions, the government Defendants filed with the court their response and opposition to the preliminary injunction requested by the Plaintiffs.
In their response, the government claims that the court lacks jurisdiction over the matter (very common claim the government makes), among other reasons, that the agency’s general policy is not a “final” action for purposes of the APA therefore it is not reviewable by the court.
Furthermore, the government argues, that the guidance memorandum at issue in this case is not subject to the notice and comment rulemaking requirements of the APA because it "merely sets forth a general and flexible framework to guide agency adjudicators in the exercise of their discretion. The memorandum simply refines the contours of an already existing legal norm set forth in the agency’s regulation". We all know this to be untrue, as the agency did in fact change its interpretation and existing legal norm.
In any event, the government argues that the memo falls within the contours of a policy statement or interpretive guidance, and thus exempt from the notice and comment rulemaking.
Based on all the above, the government argues that the Plaintiffs do not show a strong likelihood that their law suit will succeed on its merits, and therefore the court should deny the preliminary injunction.

USCIS UPDATES H-1B CAP COUNT FOR JULY 9, 2010 -- AT 24,800

2010-07-16T09:59:00.000-07:00

USCIS updated this week its count of the FY-2011 cap-subject H-1B petitions -- as of July 9, 2010, USCIS received approximately 24,800 H-1B petitions that are subject to the cap and 10,600 petitions subject to the U.S. advanced degree cap. The jump from last week to this one was approximately 600, still a very low trickle...

USCIS UPDATES H-1B CAP COUNT FOR JULY 2, 2010 -- AT 24,200

2010-07-09T14:17:00.000-07:00

USCIS just issued another H-1B cap update -- as of July 2, 2010, they received 24,200 H-1B petitions subject to the regular cap plus 10,400 petitions subject to the U.S. master's cap. Slow trickle up from last time, but still relatively low usage for the last couple of weeks.
We'll continue to update as USCIS releases new numbers.

USCIS ANNUAL REPORT ON FY-2009 H-1B VISAS REVEALS MORE DENIALS

2010-07-01T12:51:00.000-07:00

In an annual report presented by USCIS to Congress regarding usage of FY-2009 H-1B visas, full data was unfolded that we all experienced empirically.
According to the report, the total number of H-1B petitions received was down about 15% from the prior year (from 288,764 to 246,647), and approvals were down about 22% (from 276,252 to 214,271). This represents approximately a 50% increase in the rate of denials. Not a big surprise considering how USCIS has hammered all H-1B applications with burdensome and many times against the law RFEs, denials, etc., in the general culture of no. I suspect FY2010 denials will show an even higher percentage than that of FY2009.
According to the report, about half of the approved petitions (48%) were for workers born in India, and about 41% for computer-related positions. No surprises here.
Two thirds of workers whose petitions were approved were between 25 and 34 years old. Again, no surprises, as the H-1B users are mainly young professionals. 41% of approved H-1B petitions were for workers with a bachelor’s degree, 40% had a master’s degree, 13% had a Ph.D. and 6% had a professional degree (such as M.D., J.D., etc.).
The median wage for these workers were $64,000 per year, which is a high wage indicative of professionals in the field. This wage represented a $4,000 increase in the median salary over fiscal year 2008 which shows that the U.S employers are willing to pay more for these workers even in times of economic recession.

USCIS TO USE D&B TO VERIFY IMMIGRATION PETITIONERS

2010-06-28T15:18:00.000-07:00

USCIS is launching a pilot program in July 2010 that will use Dun & Bradstreet databases to verify business information of employers who submit immigration related petitions, including H-1B petitions, I-140s, etc.
"Verification Instrument for Business Enterprises" (VIBE) is a tool intended to help combat immigration fraud, and to minimize requests for additional evidence regarding petitioners' business data. The hope is to eventually make submission of routine documentation unnecessary. VIBE will be used to verify a petitioner's ownership, date of establishment, current address, number of employees, business activities, and relationship with other entities, etc. In case of discrepancies between VIBE and the information contained in a petition, the employer will given an opportunity to explain the discrepancy. The full implementation of VIBE is expected to take place later in the year 2010.
However, businesses should verify their D&B information and keep it updated.

USCIS UPDATES H-1B CAP COUNT FOR JUNE 18, 2010 -- AT 22,900

2010-06-28T08:21:00.000-07:00

USCIS just issued another H-1B cap update -- as of June 18, 2010, they receive 22,900 H-1B petitions subject to the H-1B cap (regular) plus 9,700 petitions towards the Master's degree quota. Very slow demand but the number trickles up...

LAWSUIT FILED AGAINST USCIS ON NEUFELD MEMO IMPLEMENTATION

2010-06-18T09:37:00.000-07:00

At long last a law suit was filed against USCIS to prevent it from implementing the Neufeld Memo guidelines. The Neufeld memo, issued on January 8, 2010, changed the definitions of employer-employee in the context of H-1B visa applications, and changed the immigration regulations, decisions and policies, as well as employment law provisions in Federal and state laws.
This law suit articulates what is wrong with the memo which changed the definition of employer-employee relationship from a company which may hire, pay, fire, supervise, or otherwise control the work of the employee to a different rule which relies on eleven factors under common law analysis to determine whether an employer has the right to control that employee. However the common law analysis under the supreme court case in Darden only applies in cases which lack statutory definition. The Immigration and Nationality Act clearly defines an "employer".
This Neufeld memo specifically declared that third-party placement contractors lack the necessary control over their employees even though the immigration regulations specifically authorize them as valid employers to file for visas for their employees, and so many of the staffing companies and the consulting companies that place employees at third party sites are specifically excluded from applying for H-1B visas for their employees following the issuance of the memo (even though they are permitted to do so by the Act and regulations and were previously approved by the agency prior to the January memo).
This law suit attacks the immigration agency on multiple grounds, but its main arguments are that USCIS changed the rules and regulations in violation of the regulatory and statutory authority to do so, in violation of the Notice and Comment requirements of the Administrative Procedure Act, failed to perform a regulatory Flexibility Act analysis (to study how this change would impact H-1B employers, such those of the staffing agencies), and that the memorandum is arbitrary or capricious agency action because it redefines the employer-employee relationship without justification to eliminate an entire, lawful business sector, and not in accordance with the law - all of them very valid points.
With this law suit, the Plaintiffs seek that the court issue a declaratory judgment against USCIS stating that this memorandum and policy is invalid, and they also seek a preliminary injunction to immediately enjoin the government from implementing or using the memorandum’s definition pending final decision on the merits by the court, because the Plaintiffs have already received several denials from the agency (for example for H-1B renewals) following the January memorandum.
Since the Immigration Service did not follow the government’s process for rulemaking, including publishing the proposed change in the Federal Register, it could be voided by the court as illegitimate rulemaking, and the prior regulations and policies reinstated. This rule already caused significant damage to many employers and will continue to cause damage estimated over $100 Million to the staffing industry.
The complaint was filed in the Federal Court in Washington, D.C. Broadgate, Inc., et al v. USCIS, et al, Case number: 1:10cv00941. Judge Gladys Kessler will be hearing the case. Stay tuned... we will for sure.

USCIS UPDATES H-1B CAP COUNT FOR JUNE 11, 2010 -- AT 22,000

2010-06-17T11:04:00.000-07:00

USCIS just issued another update -- as of June 11, 2010, they have received approximately 22,000 H-1B visa petitions subject to the regular cap plus another 9,400 petitions approximately subject to the master's/advanced degree cap.
Still plenty of visas left, as the demand is trickling slowly, with the master's degrees or higher almost reaching 50% of the annual limit (at 20,000).

RESEARCH SHOWS PROFESSIONAL FOREIGN WORKERS' WAGES MAY BE HIGHER THAN AMERICANS'

2010-06-01T13:39:00.000-07:00

Recent research by two University of Maryland researchers, Hank Lucas and Sunil Mithas, suggests that foreign born professionals may earn higher wages than American workers. The study followed 802 foreign tech workers in the U.S. on H-1B and L-1 visas between 2000 and 2005. The analysis found that those who were working with H-1B and L-1 visa earned 6.8 percent more than U.S. natives in similar jobs, and that immigrant tech workers with green cards earned nearly 13 percent more than U.S. natives. The study also suggests that these foreign workers gain bargaining power with their employers throughout their stay (probably due to the high portability opportunities of H-1B workers).
The study helps to refute the myth that these visas drag down the wages paid to Americans. It's great to get confirmation of what we always knew to be true -- that professional foreign nationals are paid at least the same, if not more than Americans in most cases.

USCIS UPDATES H-1B CAP COUNT FOR MAY 21, 2010 -- AT 19,600

2010-05-25T14:11:00.000-07:00

USCIS just issued another update -- as of May 21, 2010, they have received approximately 19,600 H-1B visa petitions subject to the regular cap plus another 8,200 petitions approximately subject to the master's/advanced degree cap.
Still plenty of visas left, as the demand is trickling slowly, but it is there -- about 600-1000 visas per week.

USCIS UPDATES H-1B CAP COUNT FOR MAY 14, 2010 -- AT 19,000

2010-05-20T12:25:00.000-07:00

As of May 14, 2010, approximately 19,000 H-1B cap-subject petitions were receipted by USCIS. Additionally, USCIS has receipted 8,100 H-1B petitions for applicants with advanced degrees. Still plenty of visas left, although there was an increase of over 1,000 applications in a few days. Interesting... we'll have to continue to monitor whether it's related to economic recovery or a fluke...

USCIS UPDATES H-1B CAP COUNT FOR MAY 11, 2010 -- AT 18,000

2010-05-13T14:56:00.000-07:00

USCIS just issues notification that as of May 11, 2010, approximately 18,000 H-1B petitions subject to the regular cap plus 7,600 against the master's and advanced degree cap. Still plenty of numbers left.