Alan Lee, Attorney at Law - HR 3012 Put on Hold by Senate Judiciary Committee Republican Ranking Member; H-1B Rapid Cap Closure Figures on 11/22/11 May Signal Rising American Economy; Important Labor Certification Decision on Timing of Recruitment Procedures.

News Update - December 3, 2011

HR 3012 Put on Hold by Senate Judiciary Committee Republican Ranking Member; H-1B Rapid Cap Closure Figures on 11/22/11 May Signal Rising American Economy; Important Labor Certification Decision on Timing of Recruitment Procedures.

China and India are big winners in H.R. 3012, the Fairness for High-Skilled Immigrants Act, which eliminates the employment based per country quota cap entirely by fiscal year 2015 and raises the family sponsored per country cap from 7% to 15%. The bill passed the House of Representatives on November 29, 2011, by a margin of 389-15. A hold on it has been placed in the Senate by Charles Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee. The employment categories winners are China and India. For family based, the big winners are Mexico and the Philippines. As the bill does not provide for any new visas, but only a reshuffling of those already available, there are winners and losers. The bill would go into effect immediately with transition rules. Under those rules, a certain number of visas in the employment based categories will be reserved for three fiscal years. For FY-2012, 15% of EB-2 and EB-3 visas can be given to a country which was not one of the two states (India and China) having the most immigration in FY-2010 under those categories. For FY-2013, 10% to the countries other than the top two for FY-2011; and for FY-2014, 10% to the countries other than the top two for FY-2012.

The H-1B cap for FY-2012 (10/1/11-9/30/12) closed on November 22, 2011, amid a flood of approximately 13,500 numbers being consumed in the last two weeks. (Guesstimation based on U.S.C.I.S. 11/7/11 estimation of 70,800 total H-1B cap numbers used out of 85,000-6800 Chile/Singapore FTA H-1B1 offsetting numbers, and that the unused FTA numbers plowed back into the cap count for FY-2010 was 6100 and for FY- 2011 6350. U.S.C.I.S. has not as yet released figures on how many FTA numbers were credited for FY-2012, but the number will probably be 6100 or over). The high rate of filings was undoubtedly sparked by awareness that the cap would soon be closing, but perhaps also by a reviving national economy in which companies are again beginning to hire. U.S.C.I.S. Service Center Operations confirmed that there was no lottery for H-1B petitions (the process under which a random computer drawing selects cases on the last day for inclusion in the cap where the number of filings exceeds the cap number) and that all petitions filed on November 22nd would be included in the cap.

The Board of Alien Labor Certification Appeals (BALCA) in an en banc (entire Board) decision on 12/1/11 in Karl-Storz Endoscopy-America reaffirmed the principle that where the employer begins any step of recruitment before the dates of validity of the prevailing wage determination, it must file the labor certification application during the time of the prevailing wage's validity. The other side of the rule is that where an employer begins the recruitment process during the period, it is allowed to file the application after the expiration of the validity date, assuming that it does so within the six month recruitment period. It reversed the prior BALCA panel decision that the employer could start any of the steps of recruitment during the validity time of the prevailing wage and file the application after the wage expiration date. The employer had argued that the regulation only required that any of the steps of recruitment, e.g.-job order, notice of filing, newspaper ads, Internet posting, local newspaper, begin during the prevailing wage validity period. In this case, the employer had filed its application on February 11, 2009, and the validity of the prevailing wage determination ran from September 11, 2008 to January 1, 2009. The employer had begun recruitment prior to the validity dates on September 5, 2008. BALCA held that for purposes of the regulation, the term "begin the recruitment" means to begin the recruitment process, and not just any step of the process.

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. 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 Interpreter Releases, Immigration Daily, and 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 Bush Administration in the Intelligence Reform Act of 2004.

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