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...