Most people are now predicting that the H-1b cap will be hit before the end of the month so please make sure you accelerate the filing of any cap subject petitions. We will continue to keep you updated as numbers are released.

On March 12, 2012, the United States District Court for the Southern District of Ohio: Eastern Division issued a decision on specialty occupations in Residential Finance Corporation v. U.S. Citizenship and Immigration Services. In this case, Residential Finance Corporation submitted an H-1b petition on behalf of Geza Rakoczi. It hoped to hire him as a market research analyst. The Beneficiary graduated from Franklin University and has a Bachelor of Science degree in marketing and finance. USCIS denied the petition and concluded that there was no specialty occupation involved in the position. It reached this decision after reviewing the Occupational Outlook Handbook classification for market and survey research jobs. USCIS concluded that these positions do not have a specific specialty requirement because the handbook does not include a specific specialty requirement. Instead, the handbook only mentions that a bachelor’s degree is the minimum requirement. Consequently, USCIS stated that there was no specialty occupation involved. The Southern District of Ohio corrected USCIS by stating that the “record indicates that a minimum requirement for entry into the position of a market research analyst is the specialized course of study in which Rokoczi engaged.” Furthermore, the court noted that USCIS’s reasoning and behavior “constitute[ed] a litany of incompetence that presents fundamental misreading of the record, relevant sources, and the point of the entire petition” and suggested that USCIS “should afford Plaintiff and Rokoczi a bare minimum level of professionalism, diligence, and reasoning.”

The California Service Center and the Vermont Service Center held a joint stakeholder engagement in Laguna Niguel, California on April 5^th, 2012.  At this event, USCIS announced that 22,323 cap-subject H-1b petitions were received by USCIS as of April 4^th, 2012.  Of this number, 25 percent were submitted as advanced degree cases.  As many readers might remember, 20,000 H-1b visas are available for individuals qualifying with an advanced degree and 65,000 visas can be used for all other H-1b cases. The number of cases received towards the H-1b cap should alert employers who are still considering whether to file H-1b cap cases to take action.  The amount of cases received in this initial period for FY 2013 is almost twice the number received last year at this time. Employers should expect that the H-1b cap will be exhausted on a much earlier date than what occurred in the last few years. As always, the Hammond Law Group is happy to answer any questions about the H-1b process.

In 2008, 163,000 H-1b cap petitions were received by USCIS between April 1^st and April 7^th for fiscal year 2009.  Since only 65,000 new H-1bs can be approved in any fiscal year, USCIS faced the problematic situation of determining which cases should be adjudicated and which should be returned.  USCIS used a random selection process (also known as a lottery) to choose which cases to review and rejected any cases that were not selected.  As a result of this predicament, the Department of Homeland Security issued new regulations.  If more than 65,000 cap-subject H-1b petitions are received within the first five business days after the first date that cap subject petitions can be submitted, USCIS will conduct a random selection process to determine which cases will be considered.  Those selected will be adjudicated.  All other cases will be returned with their applicable fees. What this regulation means as a practical matter, is that a case received on Thurs April 5^th, is treated the same as if it was received on Mon. April 2^nd.

 While we do not expect the H-1b cap to be reached between April 2^nd and April 6^th for FY 2013, this information should be kept in mind as employers determine when they plan to file new cap-subject petitions.

This week, the USCIS released revised FAQ’s clarifying portions of the Jan 2010 Neufeld memo.  The original Neufeld memo declared that staffing cos. engaging in staff augmentation were not employers as that term was going to be interpreted by the USCIS. After a significant amount of lobbying by various business and legal groups, most notably TechServe Alliance, the USCIS has now modified their position.  Specifically, question thirteen notes that there are situations in the consulting / staffing world that would constitute a valid employee – employer relationship.  USCIS noted that adjudicators would consider the following factors in reviewing the relationship: “whether the petitioner pays the beneficiary’s salary, whether the petitioner will determine the beneficiary’s location and relocation assignments . . . , and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling.”  Question five which specifically states that end client letters are not required is not a change but, has been a part of the policy since August of 2011. We are very pleased to see this guidance from USCIS. We are hopeful that the adjudicators at the Service Centers and Consular officials take note of this guidance and follow it.

HLG published an Immigration Alert covering several topics of interest. If you are not subscribed to HLG’s alert mailing list, you can subscribe at the HLG web-site.

A recent report issued by the Institute for the Study of Labor in Bonn, Germany compared H-1b employees to native workers in regards to age, salary, and education level.  This study, called H-1bs: How do they stack up to US Born Workers, noted that the H-1b visa system is often criticized for harming opportunities for native workers and allowing employers to take advantage of H-1b employees.  However, the study found that H-1b workers on average are younger and more highly educated than U.S. born workers. In addition, they earn a salary that is comparable, if not higher, than the amount earned by native workers.  To reach these conclusions, the authors obtained data on individuals from USCIS for 2000 to 2010 through a Freedom of Information Act request.  This data was compared to the information provided about U.S. born workers in the American Community Survey: 2009.  The report confirms that H-1b workers come to the United States with an advanced level of education, earn high incomes, and participate meaningfully in the U.S. workforce.

The DOS recently published a final rule changing the way it would determine the validity dates it would issue for an L-1 visa. L visas will now be issued with validity periods based on the visa reciprocity schedule. The prior  rule limited L visas to the petition validity period, as shown on the I-797 approval notice issued by the USCIS.

Don’t believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP,  provides facts (those are statements that are true and not inventions of one’s mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years.  While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer.  The facts don’t lie, even if they don’t play well in the heartland.

Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions.  At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7%  prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates.  It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS.   The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of  L-1b petitions.