Today, the USCIS issued an Interim Rule which changes certain policies for H-1b cap filings for FY 2008. The full memo can be found at USCIS link.
The new rule makes 2 major changes:
1. Duplicate filings by the same employer for the same beneficiary will be denied or revoked and filing fees not returned.
2. The filing period will last for 5 business days.
It has been reported by the American Immigration Lawyers Association (AILA) that the Office of Management and Budget (OMB) has cleared for publication an interim regulation titled “Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation.” It is believed that this rule addresses the filing of duplicate petitions in the upcoming H-1B “lottery.” Given that April 1 is only a few days away, it is anticipated that the regulation will be cleared by the USCIS quickly and be published in the Federal Register, whereupon, it will become effective. We will keep you updated as developments occur.
The National Foundation for American Policy has just released a white paper which concludes that adding H-1B workers actually adds US jobs. While at first blush this seems surprising, it really isn’t in a modern service based economy. Networking effects have recently been proven to add productivity at a greater rate than individual components acting alone. The quintessential example of this is the internet. The NFAP paper used statistical regression analysis to come to its conclusion. The analysis shows that, on average, for every H-1B position requested, U.S. technology companies increase their employment by 5 workers. The gain is even greater for smaller companies.
Here is the link to the decision (page down to the fourth page):
The AAO, one of the Courts of Appeals in the immigration system, recently approved an EB2 I-140 for an individual with a full MS degree that had been attained following a 3 yr. Bachelor’s program. This is a major victory as the USCIS Service Center (particularly the Nebraska Service Center) had been issuing denials in such cases and had in fact, created their own policy, commonly referred to as the “6 year rule”, requiring that an individual have 6 years of education to gain EB2 approval when using the Masters degree standard. In the AAO decision, the Court ruled that if a credible education evaluator evaluates the Masters degree as the equivalent of a US Masters degree that the preceding education is not relevant. We praise the AAO for its decision striking down yet another, in a long line of Service Center policies that have no basis in any statute or regulation but, are simply overreaching examples of a bureaucracy run amok. It is not believed that there will be in effect on EB2 cases where the basis of the labor certification is a Bachelor’s plus 5 years of experience and the individual holds a 3 year bachelor’s degree. It should also be noted that the Service Centers routinely choose not to follow AAO decisions and your individual case may need to be litigated in order to achieve the desired result.
The U.S. government has announced higher civil fines against employers for immigration violations.
The new rule will take effect on March 27, 2008.
The most significant cost increases can be found in our recent Immigration Alert. To subscribe to our Immigration Alerts, please click here.