“If you are neutral in situations of injustice, you have chosen the side of the oppressor.” – Desmond Tutu In keeping with a belief in the truth found in the phrase above and in light of the events of the past weeks which have been painful reminders that black people in the United States continue to suffer under the oppression of racism and injustice, we are issuing a statement declaring that we stand for justice and good. At the U.S. Supreme Court building in Washington D.C. the concept of justice is depicted in a number of places with the most prominent being the statue of Lady Justice holding a smaller Lady Justice blindfolded and holding scales designed to depict that justice is fair and impartial. The ideal of justice being impartial has oft been proven to be illusory relative to the treatment of persons of color. As the poet Langston Hughes wrote, That Justice is a blind goddess Is a thing to which we black are wise: Her bandage hides two festering sores That once perhaps were eyes.” My favorite of the depictions of justice is not the prominent statue by the steps but, rather the frieze located on the west wall inside the courtroom which depicts the battle of good vs. evil. In this depiction, Lady Justice is not blindfolded but, rather, she has her hand on her sword and is prepared to fight the forces of evil for good. She is surrounded by depictions of divine inspiration and wisdom. We have a shared responsibility to be on the side of good not evil; to speak out against acts of racism and oppression; to act to bring about meaningful change; and, to be a positive force in creating places of work, communities, cities, and a nation that stands for [...]
The Department of State released the May visa bulletin and as promised, there was some forward movement in all categories including India EB2. Also included in the bulletin were predictions of future movement and an interesting (if you are an immigration attorney, an Indian national in the EB2 category or simply crazy about numbers) explanation on how the unused numbers from EB1 will trickle down to EB2, etc.
If the political parties can't agree on a budget and the government shuts down on Fri. as threatened, the implications to various agencies involved in immigration processing are significant. Although, much is not yet announced it is likely that there would be little impact to the USCIS as they are primarily funded by fees whereas the DOL and the US Consulates would be essentially closed. Only "essential functions" woudl be available during a shutdown. It is conjecture but, believed that no DOL function relating to immigration processing would be deemed essential so no LCA's, no PERM processing, etc. It is also likely that all visa appointments at US Consulates would be cancelled. We will keep you updated with official information as it becomes available.
With the H-1b cap season in full swing, the USCIS has issued a new set of FAQ on the subject of "cap-gap". A "cap-gap" occurs when a foreign student's EAD card, issued pursuant to the OPT rules, expires prior to October 1, 2011. The USCIS has adopted rules that provides for an automatic extension that allows students to continue to be employed under the OPT provisions as long as their sponsoring employer has timely filed an H-1b cap subject petition that is properly receipted. An employer should be careful that the employee's I-9 form is properly completed in this situation. We applaud the USCIS for its "cap-gap" policy.
The National Foundation for American Policy released a study this week that claimed that the filing fees associated with the H-1b program have reached $3 Billion over the past decade. H-1b filing fees have funded scholarships for 58,000 US citizens seeking higher education in the sciences and math. They have also funded training programs for over 100,000 U.S. workers. Further, this study echoed findings from the GAO released earlier this year, making the claim that H-1b workers are not paid lower wages than U.S. workers in similar positions. When one considers the huge cost to employ an H-1b worker and that the wage to be paid the worker must meet prevailing wage standards, a person honestly looking at the H-1b program should reach the conclusion that the H-1b worker just might be what the U.S. employer needs for a specific position. Or, one can just ignore the facts and continue to shout as loudly as possible "The H-1b program is stealing American jobs !" As Congress is currently debating certain facets of the H-1b program, it would be nice if we could believe that our Congresisonal leaders would at least consider the facts. Of course, it would also be nice if the tooth fairy were real.
The Department of State has advised AILA that due to a lack of demand for the EB1 category, there will be a trickle down effect that will positively impact the Indian EB2 category and move dates forward. They estimate that an additonal 12,000 visas will be available to the Indian EB2 category. This is great news as this category has not moved since Sept of 2010 and the prior prediction from the DOS was that no movement should be expected in FY 2011. We expect to see this forward movement as early as the May Visa bulletin which will be released in mid April. This good news should not derail efforts for long-term legislative relief and reasonable wait times for all employment based categories.
The Huffington Post today reported allegations of B-1 visa abuse by the Indian based IT powerhouse Infosys. With Congressional hearings on the H-1b visa looming, more bad press about abuses of visas by a major IT house, is not good news for the industry. We will update developments on this story as they occur.
USCIS Announces Interim Policy for H-1B Cap Exempt Visas Based Upon Affiliation With Educational Institution
USCIS announced today that it is reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. During this interim period, USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication. The burden will remain on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption under this theory. Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. USCIS has not announced a date on which further guidance will become available.