News Update - January 10, 2011H-1B EMERGENCY - Cap Numbers Running Out Now!!! Storm Clouds Over Washington for Birthright Citizenship.A few weeks ago, I wrote to our client employers that we believed that the H-1B quota for fiscal year 2011 running from October 1, 2010-September 30, 2011, would exhaust itself by late January 2011. Our prediction looks much more realistic given the state of the numbers today. In the most recent count of U.S.C.I.S., 7400 H-1B cap numbers were used in the 28 day period from December 3, 2010 to December 31, 2010. If the full allotment of 85,000 cap numbers is allowed, that means that there are now only 7700 numbers left since the count is now up to 77,300. If some of the remaining numbers are given over to the Chile/Singapore Free Trade Agreement as is allowed under law, there would be even less remaining numbers. The consequence of having no cap numbers available is that, although fiscal year 2012 H-1B visa applications will be accepted beginning April 1, 2011, the approved beneficiaries will not be able to commence work until October 1, 2011, under H-1B status. It is clear from past experience that the numbers tend to run out very quickly near the end, and so H-1B cases should be begun immediately if employers have need to place any worker(s) under H-1B status before October 1, 2011. Readers are reminded that an H-1B cap number is not allocated until the H-1B petition has been received by U.S.C.I.S. Submission of the first part of the H-1B, the Labor Condition Application (LCA) does not preserve a number. Please also remember that the Department of Labor is taking approximately seven days to adjudicate LCA applications. As part of a Republican and Tea Party movement to deny U.S. citizenship on the basis of birth in this country, a coalition of state legislators called State Legislators for Legal Immigration gathered in Washington, D.C. last week to attempt to force the issue of birthright citizenship before the Supreme Court. They along with others are pushing for a re-interpretation of the 14th amendment clause that grants citizenship to those born in the United States. Pointing at the phrase "subject to the jurisdiction thereof," they argue that since illegal immigrants are not subject to the laws of the United States, their children should not be given citizenship status just because they happen to have been born within its borders. The current interpretation comes from two landmark Supreme Court cases from the 1800's, one of which, United States v. Wong Kim Ark, 169 U.S. 649 (1898), held that the son born in San Francisco, CA., of Chinese domiciled residents of the U.S. was a citizen of the United States.
† 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 © 2011 Alan Lee, Esq.
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