H-1B CAP HAS BEEN REACHED

Last night the USCIS reported the H-1B cap has been reached for this fiscal year. Accordingly, the USCIS will not accept H-1B cap-subject Petitions. The next H-1B cap season begins on April 1, 2011, with start dates of October 1, 2011.

Please keep in mind that international workers who are working in the U.S. on an H-1B visa with another H-1B employer ordinarily are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

In preparation of the next H-1B cap season, MU will be holding a free teleconference for our clients. The agenda for this teleconference includes:

1. H-1 Cap 2011 - analysis
2. H-1 Cap 2012 - a look ahead and projections
3. Discussion of the new Form I-129
4. Update on USCIS Site visits and DOL Audits
5. Strategy session: H-1B Dependent employers
6. MU's 5 Big Things to Stay Compliant!
7. BONUS - MU's 3 Even Bigger Things to Stay Compliant!!

If you are an MU client and interested in participating on this call, please email Jeana to register.

BALCA on Employee Referral Programs

The BALCA (Board of Alien Labor Certification Appeals) just this week released an opinion stating what an employer must do if it is to use the employer referral program recruitment step in the Labor Certification process. The case is In Re: SANMINA-SCI CORPORATION.

The BALCA says that there must be 3 parts to a satisfactory employee referral program.

(1) its employee referral program offers incentives to employees for referral of candidates,

(2) that the employee referral program was in effect during the recruitment effort the employer is

relying on to support its labor certification application, and

(3) that the Employer’s employees were on notice of the job opening at issue.

The interesting legal analysis is in the third part. In this case, the BALCA says that the employer must specifically note that the job opening was publicized to the employer's staff. In its analysis it said that Sanmina-Sci Corp gave notice in two ways: (a) the Notice Posting; and (b) internal web posting.

The interesting part is that the BALCA does not say if the case would have been approvable if only (a) or (b) existed. In Footnote 6, the BALCA specifically decided not to address that important legal question.

The reason that this question is important is because the (a) Notice Posting exists in every Labor Certification.

The take-away is this: employers should always make sure that the employer has "publicized" the employer referral program through either (i) a blast email to its relevant staff; (ii) an employer's internal website; (iii) an employer newsletter; (iv) a "paycheck stuffer"; or (v) some other similar method. To be safe, the employer should specifically mention the LC-proffered job.

As an aside, the BALCA also reiterates that an employer who posts for 10 days meets the Notice posting step as long as it proves that the employer was open for business during each of those ten days. This is helpful in cases where healthcare facilities are the employer, since these facilities are often open on weekends and holidays.

Typical healthcare occupations that require Labor Certifications include: Occupational Therapists, Speech Language Pathologists, Medical Technologists, and Doctors.

GAO recommends H-1B changes

The Government Accounting Office is Congress’ “Investigating Arm.” Congress often tasks the GAO to explore potential improvements to all sorts of government programs. One recent GAO task was to examine the H-1B program and to suggest recommendations to the program.

On Friday the GAO released its recommendations. Traditionally these recommendations are given consideration but are rarely implemented because of the political nature of immigration policy. Some of the recommendations require Congressional approval. Other recommendations only require Presidential (Executive) action. Still, these recommendations cast a light into the thinking of some of the brighter minds in the government.

MU’s summary of the recommendations are below the links to the report.

GAO Recommendations

Summary Report

Full Report

MU Summary of the GAO Recommendations

Recommendations requiring Congressional action

1. Consolidating the LCA so that it is filed with the USCIS, not DOL.
2. Granting USCIS subpoena power.
3. Holding staffing companies’ end-clients responsible for H-1B and LCA rules.

Recommendations requiring Executive Action

1. Better electronic links between USCIS and the Consulates and Embassies of the Department of State.
2. Better distribution of the H-1B numbers, such as allocating ¼ of the H-1B cap in quarterly batches and allowing employers to “rank” their desired H-1B petitions.
3. Allowing Petitioners with a strong compliance history to file streamlined H-1B Petitions.
4. Creating a webpage where all employers must post H-1B positions
5. Improve the DOL’s electronic database.

February Visa Bulletin

The Department of State has just released the February 2011 Visa Bulletin, which is the fifth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had very small progress in several classifications.

February 2011 Visa Bulletin
	All Other Countries	China	India	Mexico
EB-2	Current	01JUL06	08MAY06	Current
EB-3	01APR05	01JAN04	22FEB02	08JUL03

H-1B Count: 58,700

The latest USCIS update says that 58,700 of the 65,000 regular H-1B numbers were used as of January 7, 2011. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000. MU predicts that the H-1B cap will be reached by the end of the month. MU clients strongly are urged immediately to initiate and file any regular cap-subject H-1B cases.

Prospects for Healthcare Immigration in 2011

The last few years have seen a declining American economy, dramatically reduced hiring numbers, and a Congress that has proven incapable to lead the country on badly needed immigration reform. Still, thanks to declining demand for H-1B numbers from the IT community, there are some signs that the worst may be over for healthcare immigration. There may even be a chance for positive healthcare immigration for nurses, although not where it is most needed.

Although the 112^th Congress is divided and that usually means gridlocked legislation initiatives, a coalition of like-minded Senators and Congressman may be able pass long-needed legislation aimed at solving one obvious staffing shortage in the healthcare industry – nursing.

Nursing is the largest professional occupation in healthcare. While the nursing shortage has abated in many areas in the US, most economists predict the reemergence of the nursing shortage in the near term. Thursday’s jobs’ news was mixed. The positive news was that the unemployment number fell to 9.4%, which is the lowest percentage in 18 months.

Might the 112^th Congress consider a nurse visa bill aimed at reducing the 5-6 year wait for an immigrant nurse to enter the US? Perhaps. But the better chance is that the Congress looks to restore the H-1C visa, which provides badly-needed visas for 14 of the direst healthcare facilities. Rep. Lamar Smith, who is the forthcoming Chair of the Judiciary Committee, represents South Texas, near where several of the 14 facilities are located. With some advocacy, it is possible that the H-1C could be slightly amended to liberalize a revived H-1C.

For specialty occupation allied healthcare positions that require a bachelor degree for entry into the position, such as Physical Therapists, Occupational Therapists, Speech Language Pathologists, the IT industry’s minimal usage of H-1B numbers looks to continue in 2011. Coupled with increasing opportunities for EB-2 immigrant visas, and notably faster labor certification times, prospects remain bright for applicants in these occupations in 2011.

While a revived H-1C and more opportunities for H-1Bs are not as desired an increase to the EB-3 retrogression-driven quota, these factors may make 2011 a better year for applicants and employers than the last few.

H-1B Cap To Be Reached

With the H-1B cap nearly reached, MU clients strongly are urged immediately to initiate and file any regular cap-subject H-1B cases. The H-1B cap likely will be reached in January 2011.

The latest USCIS update says that 53,900 of the 65,000 regular H-1B numbers were used as of December 17, 2010. While demand typically levels off during the Christmas and New Years holidays, it is expected that the demand will rise again in the first weeks of January. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

Employees that may need an H-1B visa include:

• International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;
• International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
• Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
• Prospective international employees currently living abroad.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs. As of December 17, 2010, 19,700 of the 20,000 have been received by USCIS. While no official USCIS announcement has been issued, that cap effectively may have already been reached.