News Update - November 5, 2010H-1B Number Count and When Will the Numbers Run Out; BALCA Renders Conflicting Decisions Where Employer's Name is Omitted From Posting; New CIS Fees in Effect 11/23/10For H-1B counters, 62,300 H-1B cap numbers have been used as of October 29, 2010, out of an approximate 85,000 total. Of the amount, 45,600 went to the general cap, and 16,700 to the U.S. Masters or higher cap. H-1B usage for the past five weeks has been per week 1800, 2000, 1200, 1800, and 1500. There are now approximately 22,700 numbers left. Barring any sudden developments, the H-1B cap should not exhaust itself until January at the earliest. The Board of Alien Labor Certification Appeals (BALCA) in a panel decision ruled favorably in a case earlier this year, Matter of Direct Meds, Inc., that leaving off the employer's name on the internal notice of posting (as required by regulation) was acceptable in some circumstances where the company was small, everyone knew the listed contact, and the place where the notice was posted was exclusively used for company bulletins. In that case, the company had 25 persons, the contact person was the president, the notice was placed on a segregated bulletin board for legal notices and notices to employees, and it was posted adjacent to a notice advising employees of the position as part of the employee referral program, including the same job description, contact, and placed on company stationery. However, another panel of BALCA, in the October 27, 2010 decision, Robert Venutti Landscaping Inc., said that the exception to putting the employer's name on the posting was no longer viable under the present regulatory scheme and upheld the denial of labor certification. The two conflicting rulings have left practitioner shaking their heads and wondering what the next BALCA panel will decide, or whether the whole Board will be required to render a decision that will be universally recognized. Readers are reminded that the new U.S.C.I.S. fees go into effect on November 23, 2010. If wishing to pay the old fees, applications/petitions must be postmarked by November 22, 2010. The new fees are expected to garner U.S.C.I.S. an approximate 10% increase in fee revenues on average although naturalization application fees will remain the same. The new Immigrant Visa DHS Domestic Processing Fee of $165 will also come into effect and be collected on behalf of U.S.C.I.S. by the U.S. consulates and embassies before immigrant visas are issued.
† 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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Copyright © 2003-2012 Alan Lee,
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