We knew it couldn't last and we are sad to report that the US Consulates in Canada have now joined their brethren from Posts in India and Manila in determining that it is their duty as red-blooded Americans to re-adjudicate every issue in an H-1b petition before issuing a visa. The US Consulates are re-adjudicating issues relating to itinerary requirements, Labor Condition Applications, short-term placement rules, employer-employee relationship, the rule of control and supervision created by the Neufeld policy memo, and the validity of employment contracts to name their favorite topics. Attached is the latest emailbeing sent by the US Consulate in Ottawa to end clients (or at least who it perceives to be end clients). The practice of re-adjudication of petitions previously approved by the USCIS is not supported by the regulations but, is being done under the guise of fraud prevention. Errors in interpretation and/or mis-application of DOL and USCIS regulations and case precedent go unchallenged since US Consulates enjoy the protection provided by the doctrine of non-reviewability. It is time for Congress to re-examine this doctrine and allow employers and foreign nationals who are wrongfully denied a visa to go into a Federal Court and obtain redress. Only with the threat of an impartial judge reviewing their actions will the US Consulates stop the witch hunts and follow well-established law and procedure.
The USCIS has released the number of cap cases filed through April 7, 2011 and as expected, the number of new cap filings does not come close to reaching the quota . Specifically, 4,500 cap cases were filed toward the Master's quota and 5,900 toward the regular quota. These numbers represent drops of 57% and 21% respectively. This drop is likely attributable to multiple factors including: FY2011 cap only being reached in Jan so fewer filings have been stockpiled, the disruption in the NPTE exam being given to physical therapists educated in India or the Philippines, continued weak hiring in various sectors due to economic factors and the USCIS Neufeld policy that encourages projects being performed at off-shore development centers rather than in the U.S. On the right hand side of this page, you will see "really cool charts" where we will provide updates of the number of cap cases being filed. When the caps are reached, the charts "explode like a volcano" or so I have been promised