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.
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