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...