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FY-2011 H-1B Cap Numbers Just About Gone; USCIS Proposes Employer Registration Program For H-1B Cap Cases

by Alan Lee, Esq.

The American Immigration Lawyers Association stated in a January 6, 2011, posting that 450 numbers were taken by the Chile/Singapore H-1B1 visas. That number must be subtracted from the 85,000 total cap numbers available for new H-1B filings in fiscal year 2011 (FY-2011 runs from 10/1/10-9/30/11). With the latest count of U.S.C.I.S. on January 14, 2011, showing total use up to 80,700 (2000 numbers used in the one week period from 1/7/11-1/14/11), that means that there are in actuality only 3850 numbers left. Some pundits are already predicting H-1B exhaustion within one week. From our viewpoint, the quota will be extremely hard pressed to survive into February, and we expect it to be completely filled by the fourth week of January.

U.S.C.I.S. is planning to propose a new regulation, "Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations," (RIN: 1615-AB71) calling for an employer electronic registration program for new H-1B petitions subject to the cap. The new mandatory, internet based registration system would in the agency's eyes allow employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers without having to first prepare and submit the petition. Employers who are rejected for a cap number will have saved money and effort. However, employers that are allocated a cap number and ultimately file a petition will experience the new and additional cost of filing a registration. From this corner, the planned regulation appears unnecessary as the chief complaints of U.S.C.I.S. - that it costs the agency money and manpower to intake and handle the "lottery" process of H-1B petitions and that employers are put to great effort and cost in filing cases for which there are no cap numbers - are not well taken, especially in these two past fiscal years, FY-2010 and FY-2011, in which the H-1B cap numbers have not been exhausted in the first few days of April, but have lasted until December and January respectively. At this point, the planned regulation just appears to be a wasteful bureaucratic layering designed to collect further fees for the agency. As the proposed regulation is only in the planning stages, it should be shelved and not given an opportunity for formal proposal in the Federal Register.

2011 Alan Lee, Esq.

About The Author

Alan Lee 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.

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