The USCIS has released the H-1b cap count for filings received through May 25th. The Master’s number has reached 17,500 and the regular count has reached 48,400. We are estimating a week to ten days remaining until the quota is exhausted. We will continue to update the count as information is made available.
On March 16, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Marlabs, Inc. In this case, the employer filed a labor certification application for a Senior Java Application Developer. On the ETA 9089, the employer stated that it engaged in three additional recruitment steps, including advertising through its employee referral program. When the case was audited, the employer provided a page from its employee manual that discussed the terms of the employee referral program as evidence that this form of recruitment was used. The case was denied because the employer “failed to provide dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” After engaging in an analysis of the statutory requirements and relevant case law discussing employee referral programs, BALCA upheld the denial of the case because “there was no documentation in the audit response, other than the dates listed on ETA 9089, that addressed whether the employee referral program was in effect during the recruitment effort.” While BALCA recognized that the ETA 9089 was used by the employer to demonstrate the dates the employer referral program was in effect, it stated that the ETA 9089 cannot be used as the only form of evidence to document the relevant dates that the employee referral program was advertized. When using an employee referral program, employers should be careful to ensure that they appropriately document the dates the employee referral program is advertised and the incentives involved.
HLG will be hosting its annual seminar in the NJ/NYC area on Friday, Aug 17th. The seminar will focus on issues impacting IT staffing and consulting firms and their H-1b employees. Check out the full agenda. Both Mike Hammond and Cadence Moore will be in attendance and speaking.
As expected, the June Visa Bulletin, recently released by the Department of State, made EB2 for India and China unavailable. All EB3 categories continued their snail-like pace forward. There was also a warning that cut-off dates for the EB1 category and the EB2 category for all other countries may be necessary before the end of this fiscal year.
On March 12, 2012, the United States District Court for the Southern District of Ohio: Eastern Division issued a decision on specialty occupations in Residential Finance Corporation v. U.S. Citizenship and Immigration Services. In this case, Residential Finance Corporation submitted an H-1b petition on behalf of Geza Rakoczi. It hoped to hire him as a market research analyst. The Beneficiary graduated from Franklin University and has a Bachelor of Science degree in marketing and finance. USCIS denied the petition and concluded that there was no specialty occupation involved in the position. It reached this decision after reviewing the Occupational Outlook Handbook classification for market and survey research jobs. USCIS concluded that these positions do not have a specific specialty requirement because the handbook does not include a specific specialty requirement. Instead, the handbook only mentions that a bachelor’s degree is the minimum requirement. Consequently, USCIS stated that there was no specialty occupation involved. The Southern District of Ohio corrected USCIS by stating that the “record indicates that a minimum requirement for entry into the position of a market research analyst is the specialized course of study in which Rokoczi engaged.” Furthermore, the court noted that USCIS’s reasoning and behavior “constitute[ed] a litany of incompetence that presents fundamental misreading of the record, relevant sources, and the point of the entire petition” and suggested that USCIS “should afford Plaintiff and Rokoczi a bare minimum level of professionalism, diligence, and reasoning.”
I’ll be the first to admit that many of the immigration issues facing our country are highly complex and highly debatable as to solutions however, there are other issues with solutions that seem as plain as the nose on your face so why can’t those be fixed ? A Stanford Law School professor, Mariano-Florentino Cuellar, has just published an interesting article in the UC Irvine Law Review trying to answer this very question. I know that most of my readers, like me, normally only read articles as long as a comic strip but, make an exception and read this if you are a political junkie or just plain curious.
Recently, the Harvard Business Review published an article discussing the battle to retain US educated international STEM grads and the need for improved US immigration policies to enhance US businesses trying to retain this talent as opposed to the current climate, where US immigration policy often forces STEM graduates to offer their talents overseas.