H-1B Cap Reached for FY 2012

Posted December 6, 2011

USCIS has announced that November 22, 2011 was the final date that petitions for H-1B specialty occupation visas would be accepted for employment to start during fiscal year 2012 (Oct. 1, 2011 through Sept. 30, 2012).  The annual statutory cap of 65,000 has been met for ‘new employment’ H-1B visas.  Further, as of October 19, 2011, USCIS had received more than 20,000 H-1B petitions filed on behalf of advance degree graduates of U.S. universities, representing the annual statutory maximum for that cap-exempt group.  Accordingly, until April 1, 2012 – at which time fiscal year 2013 H-1B petitions may be submitted – USCIS will only accept and process H-1B petitions filed under remaining cap-exempt categories, including petitions filed to:

  • Extend H-1B status for workers continuing U.S. employment with the same employer;
  • Change the terms of employment for H-1B workers continuing U.S. employment with the same employer;
  • Change U.S. employers for workers previously accorded H-1B status with a former employer; and
  • Obtain H-1B status for concurrent U.S. employment with a different U.S. employer.
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Significant Drop Seen in Illegal Migration

Posted December 5, 2011

By implication from the volume of arrests, the number of illegal border-crossers entering the United States through the southwestern border has plummeted to levels not seen for nearly forty years.  According to figures released last week by the Department of Homeland Security (DHS), 327,577 persons were arrested along the U.S.-Mexico border during fiscal year 2011, a drop in 25% from the prior year and a pittance of the 1.6 million persons arrested in 2000.  This trend, coupled with Immigration and Custom Enforcement’s (ICE) removal of nearly 400,000 individuals from the country in fiscal year 2011 – the largest number of removals in the agency’s history – bodes favorably for the immigration reform debate, given the frequent caveat by tepid proponents of immigration reform that the border must be secured before comprehensive changes to immigration laws are implemented.  Since 2004, the number of Border Patrol agents has been doubled and physical barriers improved, along with technological advances in security measures, such as the use of cameras, sensors and Predator drones (yes, Predator drones).  Will a precipitous drop in illegal migration change the political environment for comprehensive immigration reform? Stay tuned.

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Aliens of Extraordinary Ability – The O Visa

Posted November 29, 2011

The O visa category is reserved for aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1), the artist or athlete’s support staff (O-2), and the spouse and/or children (O-3) of the principal O-1 visa holder.

To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. The category does not include extraordinary ability in the arts, motion pictures or television.  There is currently no annual cap on O visas.

Evidentiary Requirements:

The U.S. employer should file the petition (Form I-129) with:

  • A written advisory opinion from a peer group (labor organizations included) or a person designated by the group with expertise in the alien’s area of ability;
  • A copy of any written contract between the employer and the O-1 visa beneficiary, or a concise summary of the terms of the agreement under which the O-1 (and O-2, if any) visa beneficiaries will be employed, including location(s) and duration of employment;
  • Evidence that the O-1 visa beneficiary has received a major, internationally-recognized award, or evidence of at least three of the following:

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In Reply to Mitt Romney and David Frum

Posted November 28, 2011

David Frum is a former special assistant to George W. Bush and a frequent political commentator who maintains a popular online community, FrumForum.  In a recent CNN column, he weighs in on the heated immigration debate, siding with Mitt Romney in opposing Newt Gingrich’s recent assertion that some form of a legalization program must be coupled with continuing enforcement.  The following is my reply.

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I believe Gingrich is more right and Romney (and Frum) are more wrong here. There will have to be compromise in this legislation. There are very few absolutes in U.S. immigration.

Gingrich doesn’t deny that enforcement is a two-pronged approach, part securing the border, part employer sanctions.

The guest worker issue likewise requires a duality of approach that doesn’t cater to absolutist socioeconomic principles. We must address low-skilled workers, the poor tired huddled masses (as it were – now more like the guys hanging around Home Depot) as well as the engineers and scientists so valued by the business community and research institutions.

Current low-skilled guest worker visa programs that are tied to seasonal or agricultural employment are not the problem. Existing J and H categories (exclusive of H-1B) will have to become part of the solution, tweaked, bifurcated and expanded somehow to provide a semi-orderly transition from the past to the future for working illegals who would otherwise have no basis to qualify for a legalization program. Frum and Romney apparently dismiss this technocratic approach entirely, until the border is secure, and they’re wrong. First build the roads, then build the towns. Colonials had the luxury of vice versa; we no longer do.

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