News Update - May 9, 2009

By Alan Lee, Esq.

H-1B Cap Count Prediction and New H-1B Fraud Detection Techniques Being Implemented

On May 4, 2009, U.S.C.I.S. released an H-1B cap number count of approximately 65,000 overall petitions received. These figures were apparently from applications received through April 27, 2009. The approximate total of available H-1B cap numbers is 85,000. H-1B season is therefore still open (See our article, "Open Season for New H-1Bs" in the Immigration Daily, 4/14/09). From the slow filling out of the quota, H-1B cap numbers may still be with us for anyone to make application for at least another month. The slowdown will be further exacerbated by the mandatory use of Labor Department's new ETA 9035 as of May 15, 2009, which involves more scrutiny and longer review period (up to seven days). H-1B petitions require an approved labor condition application (LCA) on form ETA 9035 as a precondition to filing, and the LCA review period has traditionally been none as most LCA's are approved instantaneously upon electronic filing.

In other H-1B news, Homeland Security Secretary Janet Napolitano recently said in testimony before a congressional committee that DHS is increasing H-1B enforcement and has added fraud prevention techniques that were not used previously in the H-1B program. These measures include work site visits. U.S.C.I.S., a component of the DHS, had published a report that one in five H-1B petitions involved fraud or technical violations.

 


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2009 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
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