News Update - April 14, 2010

By Alan Lee, Esq.

Much Room For More H-1B Cap Petitions

U.S.C.I.S. announced on April 9, 2010, that it had received altogether approximately 19,100 H-1B cap petitions including those registered under the U.S. Master cap.  The breakdown so far is approximately 13,500 H-1B petitions counting against the 65,000 cap and 5,600 against the 20,000 U.S. Masters degree or higher cap. The total cap is 85,000 minus a minuscule number for those eligible under the Chile/Singapore Free Trade Agreement.  When the 20,000 for the U.S. Masters cap is exhausted, further petitions by U.S. Masters cap or higher degree holders fall into the general 65, 000 cap. 

The low number of H-1B cap petitions is attributable to the general economic malaise and high unemployment rate, that companies are not yet hiring on a continuous basis, U.S.C.I.S. is cracking down on perceived H-1B abuses, and is reinterpreting one of the concepts of what constitutes employer control to qualify for an H-1B visa petition.

The H-1B cap which would normally be exhausted in lottery fashion in the first week of April in most years and which remained open until December 2009 last year appears poised to remain unfilled for at least the next few months.


The author is a 30+ 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 © 2010 Alan Lee, Esq.

 

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