News Update - May 26, 2010

By Alan Lee, Esq.^†‡

Latest H-1B Cap Count; Periods Of Time Given On H-1B Extensions To Be Limited To That Established By Evidence; BALCA Denies PERM Labor Certification For Senior Software Engineer Requiring Bachelor’s Plus Three Years Experience As Excessive

The H-1B cap count as of May 21, 2010, is 19,600 petitions against the general cap of 65,000, and 8,200 against a U.S. Masters cap of 20,000.  That means of course that there is much room under the cap for further H-1B petitions which will begin on October 1st. 

The Vermont Service Center of U.S.C.I.S. has given notice that it will no longer automatically give three-year extensions for H-1Bs.  Now it will limit the validity period based on the time established by the submitted evidence. 

In the PERM labor certification case, Matter of Wissen. Inc., 2009-PER-00405 (BALCA 4/15/10), the Board of Alien Labor Certification Appeals upheld the Certifying Officer's denial where the employer required a bachelor's plus three years of experience for a senior software engineer stating that the employer's requirements exceeded the specific vocational preparation (SVP) guidelines of a bachelor's plus two years of experience.  BALCA also pointed out that the employer had not shown business necessity for exceeding the SVP level as it had only given a general statement that a degree holder alone would only have a basic theoretical knowledge and would not possess the skills, knowledge or ability to perform the highly complex duties without extensive supervision and constant guidance.  The employer's submission of the printed advertisements of other companies also did not establish businesses necessity according to BALCA as there was no employer explanation for how the requirements of other employers bore a reasonable relationship to the occupation in the context of the employer's business. 

† 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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