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

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

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

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

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

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

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.