EXPORT CONTROL QUESTIONS SUSPENDED FOR 60 DAYS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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'

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

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

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

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.

USCIS UPDATES H-1B CAP COUNT FOR APRIL 27 -- AT 16,500

USCIS issued its weekly H-1B cap update -- as of April 27, 2010, 16,500 H-1B petitions were received that are cap-subject for the regular cap plus 6,900 H-1B petitions for applicants with U.S. advanced degrees under the master's or higher degree cap.
Plenty of visas still left...

USCIS UPDATES H-1B CAP COUNT FOR APRIL 22 -- AT 16,025

USCIS recently issued an update in the H-1B cap petitions received so far and are either pending or approved. As of April 22, 2010, USCIS received 16,025 regular H-1B cap petitions plus an additional 6,739 petitions for the H-1B master's cap (for individuals with higher U.S. degrees).
The number of H-1B petitions filed continue to trickle down very slowly due to the economic situation and many employers that are now prohibited from filing due to the Neufeld memo. Additional updates will be forthcoming...

USCIS FAQ ON EXTENSION OF CAP-GAP AND OPT FOR F-1 STUDENTS

USCIS recently issued its FAQ on cap-gap protection for F-1 students lawfully present in the U.S. who file for a change of status from F-1 to H-1B for Fiscal Year 2011.

The cap-gap problem stems from the time difference between the H-1B start time and the students' OPT (Optional Practical Training) times. The H-1B visa first becomes available based on on the government fiscal year (which start every year from October 1 to September 30 the following year). H-1B visas can be filed up to 6 months in advance (April 1). However, the student school year usually ends in May for the majority of the students. Once the students graduate, and apply for their OPTs prior to graduation, their OPT expire within one year, usually between May and July, depending on the end of the school year. That leaves a gap between these dates and October 1 where the H-1B starts.

In the past USCIS did not accommodate cap-gap situations, however it now does. USCIS allows F-1 students to avoid the cap-gap situation when an H-1B petition is filed for them and approved for change of status. This automatic extension provides the student continuous status throughout the start date of their H-1B visas, as well as continued employment authorization under their OPT. This terminates upon rejection, denial or revocation of the H-1B petition or for people who violate their status.

Based on this guidance, students can request their schools to update their I-20 forms to allow for the extension throughout September 30, 2010.

The entire FAQ is available at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD

USCIS UPDATES H-1B CAP COUNT FOR APRIL 8 -- AT 13,500

USCIS announced that as of April 8, 2010, it has received approximately 13,500 H-1B petitions counting toward the 65,000 cap and approximately 5,600 petitions for individuals with U.S. advanced degrees. Therefore, the H-1B season is still open and USCIS will continue to accept the H-1B petitions until the cap is reached.
A sluggish economy and many available American workers who were laid off are probably the culprit for the low usage. At the same time, the recent Neufeld memo restricting the IT consulting companies from sponsoring H-1B visas has probably hurt many of these companies and restricted their sponsorship abilities.

VSC RECEIVED 9,525 CAP SUBJECT H-1B PETITIONS AS OF 4/5/2010

USCIS confirmed at the Vermont Service Center Stakeholder meeting on Tuesday, April 6, 2010, that as of close of business on Monday, April 5, 2010, VSC has received a total of 9,525 cap-subject H-1B petitions. Out of those, 6,891 under the regular cap and 2,734 under the master's cap.
VSC also confirmed that the receipting date of all applications prior to April 7 will be April 7th, which is the same date where the 15-day premium processing clock will start.
While the numbers quoted above do not include the CSC intake, which has not yet been made available, this is encouraging news that the cap was not completely maximized and there are still available visa numbers for those interested in filing.

ECONOMIC POLICY INSTITUTE'S BRIEFING PAPER BIASED

The Economic Policy Institute’s briefing paper written by Ron Hira, released last week, concludes that the practice of using H-1B and L-1 workers and then sending them back to their home countries is bad for the economy.
The report's premise is that some employers use H-1B’s and L visas as a bridge to permanent residence, and some employers use those categories to transfer temporary workers. He divides the employers to good ones (who are U.S. corporations that bring H and L workers to the U.S., pay them adequate wage and sponsor them for permanent residency thereby transferring knowledge to U.S. workers) and the bad ones (generally foreign employers or U.S. employers with off-shore companies in India that bring these workers for temporary periods, exploit and underpay them and then send them back home after receiving U.S. training).
Hira called his statistic “immigration yield,” which is just a comparison of H and L visa usage versus the number of PERM applications filed by the highest users of those visas. His conclusion that because the highest users of H-1B's and Ls are Indian consulting companies, and these companies have only a minimal number of PERMs certified, they are using H's and L’s as cheap temporary labor.
This analysis is flawed for many reasons. For one, he cannot explain the high number PERM filings of one of the IT consulting companies that is headquartered in the U.S. Second, at least with the H-1B visa there is employee portability, so one firm not applying for PERM does not mean these employees are not sponsored for permanent residence by another employer. Also, the EB-3 and EB-2 immigrant visa numbers retrogression is severe for Indian nationals (EB-3 numbers are backlogged for all nationalities) -- so maybe the Indian worker does not want to wait 20 years for a green card in the EB-3 category? Third, his implication that companies that don’t sponsor H’s and L’s for PERM are using these workers instead of more expensive American labor has no basis in reality. At least with the H-1B visas, the employer must pay at prevailing wage levels. No salary data (average or median) was used in this report at all to show what the actual pay is for those employees. Also, most L-1A managers/executives are exempt from the PERM process altogether. I could go on and on about this but choose not to...
The reality is that usage of H-1B and L visas varies depending on the needs of the employer, whether it be bringing these workers here for a permanent basis or rotating experienced professionals into the U.S. and send them abroad (back home or to a third country). According to the government's fraud statistics (USCIS and DOL enforcement actions), the majority of employers who use H-1B workers pay these workers adequate wages and comply with all of the rules. Yes, there are abusers of the program, but these abusers are not the typical international corporations that rotate employees between different countries.
My recommendation to Hira is to actually do your complete research before publishing a biased briefing paper, but I suspect this was not his intention in the first place anyway...

NEW USCIS MEMO REDEFINES EMPLOYER-EMPLOYEE DEFINITIONS IN THE H-1B CONTEXT

On January 8, 2010, Donald Neufeld, Associate Director of Service Center Operations at USCIS issued a memo titled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements". This memo contains additions to the Officer's Field Manual and completely reverses multiple AAO decisions (although unpublished) and employment law provisions in various states.
The memo specifically goes after IT Consulting firms or placement firms where the individual is placed at a third party worksite and does not implement the Petitioner's proprietary software. IT implementation firms appear to be protected by this memo but they are not completely out of the woods.
The memo also goes after small business owners that are sole owners of the company sponsoring them for H-1B visas, or majority shareholders in the same. The USCIS memo states that since the beneficiary has direct control over the corporation, the corporation does not control the employment of the beneficiary.
In both cases, the USCIS memo states that there is no employer-employee relationship and therefore H-1B sponsorship is not permitted. In both cases USCIS states that there is no right to control the employee on a daily basis.
USCIS will consider the following in determining whether there is an employer-employee relationship, notwithstanding the fact that the IT consulting firm hired the individual and is on its payroll:
1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
7) Does the petitioner claim the beneficiary for tax purposes?
8) Does the petitioner provide the beneficiary any employee benefits?
9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
This Memo cites the example of a third party placement where "the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee, and the USCIS will deny such an H-1B petition. In the recent past, USCIS allowed such H-1B petitions as long as a letter from the end client was provided to confirm the job duties. Now the Neufeld Memo adds these draconian requirements – this right of control, which will be impossible to prove by an IT consulting firm that does not have its own proprietary product or methodology.
This memo brings a sharp departure from prior USCIS policies and AAO decisions, and directly contradicts many Federal and state laws relating to employment, including discrimination laws, equal pay and the Fair Labor Standard Act.
It is almost certain that litigation will follow by someone, as this industry will be out of business if this is allowed to continue.

VSC CONFIRMS $500 FRAUD FEE MAY BE PAID BY BENEFICIARY OR THIRD PARTY

VSC confirmed to AILA in a teleconference that the $500 fraud fee may be paid by the beneficiary (employee) or by a third party, not necessarily by the employer. However, if the beneficiary provides the $500 fraud fee, this cost will be deducted from the total wage paid to the H-1B beneficiary when determining whether s/he has received the required wage (prevailing or actual wage, whichever is higher). There have been some confusion with some consular officers and DOL investigators who confuse permissible payors of the fraud fee with the ACWIA training fee, which is not permissible under any circumstance to be paid by the beneficiary (employee).