USCIS UPDATES H-1B VISA COUNT ON 5/25/2012: AT 48,400

USCIS just issued another H-1B cap update. As of May 25, 2012, they have accepted approximately 48,400 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 17,500 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, still at a pace of about 6,000 petitions per week but anticipated to increase as the visas are about to reach their limit. There are probably a couple of weeks left before the quota is reached and then no more visas until October 1, 2013.
Congress really needs to get its act together and increase the quota altogether. 

LAC WINS RELEASE OF H-1B FRAUD DOCUMENTS FROM USCIS

Some good news - earlier this week USCIS released in full the remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center on behalf of AILA (the American Immigration Lawyers Association). AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. The agency's H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and have dramatically increased the frequency of unannounced worksite inspections, yet has kept the rules and guidelines related to the review process secret. In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. Finally, in response to the district court’s grant of partial summary judgment to AILA in March 2012, which found USCIS’s explanations for withholding the records insufficient, USCIS released in unredacted form the remaining contested documents: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet , and 3) a Compliance Review Report. A more detailed review from AILA will be forthcoming shortly but this is good news in trying to keep the agency more transparent and help us know what to anticipate.

USCIS UPDATES H-1B VISA COUNT ON 5/18/2012: AT 42,000

USCIS just issued another H-1B cap update. As of May 18, 2012, they have accepted approximately 42,000 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 16,000 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, at a pace of about 6,000 petitions per week but anticipated to increase as the visas are about to reach their limit. There are probably a couple of weeks left before the quota is reached.

USCIS UPDATES H-1B VISA COUNT ON 5/11/2012: AT 36,700

USCIS just published an H-1B visa cap count update. As of May 11, 2012, they have received approximately 36,700 H-1B petitions subject to the regular cap plus an additional 14,800 petitions subject to the master's degree quota. Filings are increasing in pace from week to week, with over 4,000 visa petitions that are receipted per week. The visa usage has passed the halfway mark and filings are expected to increase on a weekly basis until the cap is exhausted. I expect the H-1B visas will be completely gone by early June 2012. And then no more visas until October 2013. This is pretty bad and Congress need to get its act together and increase the quota (nothing will happen in the current sad state of affairs in Washington D.C. but maybe something will happen after the election). People should hurry up and file now if they need to get a visa this year.

USCIS UPDATES H-1B CAP COUNT FOR FY2013 AS OF 5/7/2012

USCIS just issued another H-1B cap update. As of May 4, 2012, USCIS received approximately 32,500 H-1B cap-subject petitions. Additionally, USCIS has received 13,700 H-1B petitions for individuals with advanced degrees from U.S. universities. More than 50% of both the regular cap and the advanced degree cap petitions are gone. Companies need to get their act together and file soon otherwise the visas will be gone again.

USCIS Continues To Harm H-1B Workers and Their Employers By Restrictive Adjudication

USCIS is preventing many professional workers from obtaining H-1B visas designed for professional workers and preventing growth in U.S. companies that want to employ them because of restrictive interpretations of phrases in the Immigration and Nationality Act. The H-1B visa is commonly known as the professional workers’ visa, for people coming to work in “specialty occupations” which are occupations that normally would require a bachelor’s degree as the minimum entry level into that occupation. The immigration regulations list the types of evidence that an employer must present in order to demonstrate that a position is a “specialty occupation” and USCIS in the past followed them. However, in the last few years, without any change in regulation, oversight and notice to the public, USCIS added its own requirements to the regulations. This is really improper because it circumvents the rule-making process without authorization. In the last few years, the USCIS Administrative Appeals Office (AAO) has also reinterpreted the phrases “body of highly specialized knowledge” and “degree in the specific specialty” in such a way that limits the professional occupations to those that require only a single specific degree in a discrete academic major. This goes against past AAO decisions and against the reality where the individual’s suitable and sufficient knowledge to perform the duties of an occupation could be acquired through studies in a variety of academic areas, the position would still qualify for the “specialty occupation” definition because it required “highly specialized knowledge” related to the occupation. For example, many occupations require studies in more than one academic discipline while some academic degrees and university graduates do not come with an occupation-specific major. USCIS’ new interpretation gives the field of study of each individual control whether this individual would be deemed qualified and ignores the realities of the statutory language and real world realities. For example, a CFO could have an accounting or finance degree or a general business administration degree. A computer programmer may have a computer science degree or an engineering degree or math degree, all of give the individual unique tools to perform these highly complex duties of the occupation. The U.S. Department of Labor (DOL) has public resources and publications, including occupational information. However, USCIS dismisses the DOL classifications on one hand when an employer wants to prove a certain occupation requires a degree (such as marketing manager), and on the other hand uses the same classifications when they want to deny a case because of small variations in the language used by the DOL. For example, USCIS may accept DOL’s definition that “most employers require a bachelor degree to enter into this occupation” but may not accept language such as “many employers require a bachelor’s degree”, which is in essence the same thing. In order to fulfill the statutory requirements imposed on it, USCIS should go back immediately to implement the law and the regulations in the way they were intended, and not in this new way that has no support in the law or regulations. The American Immigration Lawyers Association wrote a very educated brief on this matter requesting USCIS to go to the proper adjudication of these petitions and I hope that USCIS will follow it.

USCIS UPDATE H-1B VISA COUNT ON 4/27/2012 AT 29,500

USCIS just published an H-1B visa cap count update. As of April 27, 2012, they have received approximately 29,500 H-1B petitions subject to the regular cap plus an additional 12,300 petitions subject to the master's degree quota.
Filings are increasing in pace from week to week, with a jump of 4,500 regular petitions and 2,400 advanced degree petitions in a week. Over 50% of the visas will be used up by next week so probably the cap will be hit earlier in the summer than expected. People should hurry up and file if they need to get a visa this year.