Copland and Brenner

Table of Contents

1. H-1B Update: Hitting the Lottery Numbers
2. Mayday, Mayday: The State of CIR
3. In Brief: Recent Developments

1. H-1B Update: Hitting the Lottery Numbers

   For those affected by the annual H-1B quotas established by Congress, April and May 2007 have been real nailbiters. While U.S. Citizenship and Immigration Services (“USCIS”) announced on April 3 that it had already received enough H-1B petitions to meet the congressionally mandated cap of 65,000, no one knew at the time whether any particular case would ultimately be approved.

   Tensions may have been exacerbated by preliminary information from USCIS as to the number of petitions received. On April 3, the agency stated in a release that “approximately 150,000 cap-subject H-1B petitions” had been received, and that “[1]n light of the high volume of filings, USCIS will not be able to conduct the random selection for several weeks.”

   On April 5, the agency issued another release, this time stating that, on April 2 and 3, it had “received 133,000 unique pieces of mail containing H-1B petitions.” Noting that it had “based the initial estimate on amounts from manifests received along with the mail,” USCIS “reached the updated number following a physical count of the mail.” Since any one “piece of mail may contain more than one H-1B petition,” the agency noted that it would take “a substantial amount of time to open and sort through that volume of mail.” The only good news was that, as of the April 5 release, 4,703 cases were “exempt from the fiscal year 2008 cap as employers filed those petitions for aliens holding a master’s degree or higher from a U.S. institution.”

   For those who cared enough to send the very best – an additional $1,000 for 15-day premium processing by USCIS – the news on April 9 could only be disappointing. Due to the large number of filings, premium processing service would not be quite so premium. The agency was “not suspending or terminating the premium processing service for the H-1B classification,” mind you – it “simply imposed a condition of availability…for cap-subject H-1B petitions.” The condition? The “15-day premium processing period will begin when the petition is selected for processing through the random selection process.”

   On April 10, USCIS issued a release stating that approximately 119,193 of the H-1B petitions received on April 2 and 3 were subject to the FY2008 cap. A total of about 12,989 master’s degree exemption cases were also received on those two days. Since fewer than 20,000 master’s cases were received, that separate cap remained open and the agency could continue to process them.

   April 12 was lottery day. According to its release the next day, USCIS labeled the 123,480 cap-subject petitions received on April 2 and 3 with “unique numerical identifiers.” Then, a random selection was conducted by computer, and the “chosen numerical identifiers were then transmitted to the appropriate service center for further processing.” The release stated that those who “submitted properly filed petitions that are accepted for adjudication will receive a receipt notice dated on or after April 12, 2007. All petitions not chosen will be returned with the fee(s) to the petitioner or their authorized representative. The total process is expected to take approximately four weeks.” For those who filed under the not-so-premium processing alternative, “the 15-day premium processing period [would begin] on April 12, the day petitions were selected through the random selection process.”

   On April 19, the agency addressed a problem of its own making: issuance of receipt notices for cap-subject H-1B petitions prior to the random lottery. Strangely, the release of that date is titled “CHANGE IN H-1B PROCEDURES TRIMS WEEKS OFF FINAL SELECTION PROCESS” (all upper case in original) with only a subheading that reads, more appropriately, “ USCIS Clarifies Status of Receipt Notices Dated Before April 12, 2007 .” The release doesn’t discuss at all the notion of trimming weeks off the selection process, but discusses confusion resulting from prematurely issued receipt notices for FY2008 cap-subject H-1B petitions. This, because the agency did not have a process in place - even though it had months to plan and dire predictions of a heavy volume of new cases were made for weeks in advance of April 2. As a result of poor planning by USCIS, data entry was initially performed, filing fees were accepted and deposited, and receipt notices were generated for some petitions. At some point gears shifted and data entry for every petition was terminated, pending the lottery. Needless to say, this inconsistency caused confusion.

   Some petitioners may have suffered false hope by the fact that some receipt notices were issued by USCIS before it conducted the random lottery. Then, they might be bothered by the fact that it didn't matter whether they were really "on the ball" and achieved an April 2 filing date - only to learn that it wouldn't really have mattered if the papers had reached the agency a day later because April 3 cases would also be included in the lottery. In any event, USCIS will return all rejected petitions, with fee(s), to the petitioner or authorized representative; "[f]inal notification of those petitions is expected to occur during May."

   The agency stated in its April 19 release that "[1]n accordance with 8 CFR 103.1(a)(7) and standard USCIS procedure, FY 2008 cap-subject H-1B petitions were stamped to reflect the time and date of actual receipt." Meaning, the agency does have the data to devise a system that appropriately benefits those who actually file on the first day of H-1B availability. Pity the petitioners who receive their rejected H-1B filings reflecting "actual receipt" by USCIS at, for example, 8:13 a.m. on April 2.
   In addition to these flaws in the process, what about the substance of the thing? Specifically, since the numbers are the critical thing, do they add up? As we pointed out last month, and in several editions in years past, stories of agency miscounts have abounded ever since the H-1B cap was first reached in 1996. Even acknowledging that the FY2008 initial estimate of 150,000 would likely be off, the several press releases by USCIS since April 3 are not indicative of an agency with a firm grasp of the actual number of petitions in its possession appropriately subject to the cap.

   Not encouraging in this context is a Q & A released by the American Immigration Lawyers Association ("AILA") on May 2 (AILA InfoNet Doc. No. 07050267), in which a USCIS answer adds mystery to its methodologies: it "does not matter from a cap conservation perspective as USCIS has previously indicated that it does not allocate cap slots on a per-slot, unique basis in the way immigrant visa slots are allocated. Situations such as these involving withdrawals, denials, etc. are already accounted for in USCIS' estimated target number of petitions needed to reach the cap and withdrawal of a single cap-subject approval will not restore that individual slot to the cap pool."

   An arbitrary quota that is not reflective of actual need, a rush to file that overwhelms agency capabilities, miscounts, businesses and lives in limbo. Note to Congress: isn't there a better way?

2. Mayday, Mayday: The State of CIR

   Speaking of a better way, comprehensive immigration reform continues to be a hotly debated topic in Washington, among television and radio talking heads, and the public in general. Fortunately, even the most shrill disagreements rarely devolve into physical altercations. But MacArthur Park in Los Angeles – a name that may be familiar to some from a hit song in the 70’s - is in the news this month for another reason: an ugly confrontation by police against demonstrators at an immigration rally there. The incident occurred on May 1, a day that saw marches and rallies in several large cities by proponents of comprehensive immigration reform.

   By all reports, the numbers in this year’s gatherings – including the one in L.A. - were significantly below those in 2006. The New York Times reported on May 2, for example, that “more than 400,000 people swarmed the streets last year” in Chicago, whereas only 150,000 were estimated to have attended this year. “Several hundred thousand turned out in 2006” in Los Angeles, compared to only 25,000 this year. Many reports question whether the lower turnout this year is at least partly the result of fear, given many highly publicized raids and deportations by immigration authorities. Others suggest that different means (writing, calling and visiting elected representatives) of conveying the same ideas are recognized to be more effective than mass rallies.

   As to our elected representatives, the House of Representatives is holding immigration-related hearings during this first week of May. On May 1, the House heard testimony concerning “An Examination of Point Systems as a Method for Selecting Immigrants.” A point system is used, at least in part, by Canada, the United Kingdom, and Australia. Generally stated, those countries assess the desirability of certain new immigrants with an emphasis on labor needs and an individual’s work-related qualifications. Family unity is typically a more limited consideration. On May 3, the topic was “The U.S. Economy, U.S. Workers, and Immigration Reform.” For now, though, it’s all just talk.

   Some suggest that public opinion on comprehensive immigration reform has sagged since last year. According to The Washington Post on May 2, “[s]ince then, the immigration rights movement has faced a backlash. State and local governments have passed laws to make it more difficult for illegal immigrants to secure jobs, housing and driver's licenses. Legislation to provide a path to legalization stalled in Congress, while proposals to increase border security advanced.” And, AILA noted in a recent notice to members, calls to elected representatives are running 10 – 1 against immigration reform.

   The widely publicized MacArthur Park incident, involving a crowd largely pressing for family unity, may become emblematic of a struggle that very much resembles David vs. Goliath. It remains to be seen whether and how this might galvanize public opinion or affect the debate in Washington. Whatever the case, many believe that the last, best hope for comprehensive immigration reform will be this summer – before things heat up for the 2008 presidential election.
   But back to MacArthur Park: as described in The Times on May 3, the problems began around 6:00 p.m. on May 1. About 50 – 100 people reportedly threw rocks and bottles at officers who were trying to disperse a crowd that had moved onto a street. The police reacted by using batons and riot guns with rubber bullets, injuring not only demonstrators but members of the media – and it was all captured on video. According to The Times , “[n]ews images showed police hitting a television cameraman to the ground, shoving people who were walking away from officers and injuries from the rubber bullets.” At least three investigations by authorities will take place; others appear likely.

3. In Brief: Recent Developments

   TPS Extended : On May 2, Department of Homeland Security Secretary Michael Chertoff announced the extension of Temporary Protected Status designations for eligible nationals of Honduras, Nicaragua and El Salvador by an additional 18 months. The press release is online at http://www.uscis.gov/files/pressrelease/TPS_2May07.pdf; at this writing the regulation has not yet been published in the Federal Register .

   Religious Worker Visa Amendments : By an April 25 notice in the Federal Register http://www.access.gpo.gov/su_docs/fedreg/a070425c.html), USCIS proposed a rule that would significantly affect substantive and procedural matters involving nonimmigrant R-1 visas and the special immigrant religious worker visa category. The rule addresses concerns about fraud in the religious worker program by proposing a petition requirement in all cases, allows for on-site inspection of religious organizations to ensure the legitimacy of petitioners and their employment offers, reduces the initial R-1 approval period to one year, proposes new definitions, and adds specific evidentiary requirements for petitioning employers and prospective religious workers.