In my opinion, the time it takes to use up the H-1B visa cape is actually a pretty strong indicator of the economy as a whole. To file an H-1B visa a company has to be willing to pay substantial fees. So if there is a U.S. worker who is just as qualified and will accept a similar salary employers usually choose the U.S. worker. As the economy picks up there are not as many qualified U.S. workers available and the demand for H-1B visas increases.

As of April 9th, 25,600 cap subject H-1B petitions were received. 17,400 of these are in the regular H-1B category and 8,200 are counted in the H-1B Master’s cap category.

Charlie Oppenheim also advised that he anticipates all of the EB-1 visas to be used this year. This would be the first year that all of the EB-1 visas have been used. As a result there will be no “spilldown” to the EB-2 category. This “spilldown” helps alleviate the backlog in the EB-2 India and China categories, because the “spilldown” immigrant visas are not subject to the per-country caps.

If you are current in the EB-2 category we urge you to get on file immediately. If you need assistance preparing your adjustment of status application please contact our immigration law firm.

In the 1940′s A. Philip Randolph, an African American leader and President of the Brotherhood of Sleeping Car Porters met with President Franklin D. Roosevelt. The President asked Randolph to share his views about the concerns and aspirations of the Negroes. As reported in “Behind the Dream: The Making of the Speech that Transformed a Nation” by Clarence Jones: “Randolph eloquently outlined an agenda for presidential action point by careful point, underscoring the justice of his outlook, its economic value, and its moral fiber…Roosevelt took a moment to process it all. Then he essentially told Randolph that he agreed with everything that he had said.” “The president turned to Randolph and with a wry smile said, ‘Now, go out and make me do it.’”

The same is true for immigration reform. If we want this to happen we’re going to have to make Congress and the President do it. For too long we have been naively listening to campaign promises and dealing with Congressional gridlock. For example Obama ran on a campaign of:

• Comprehensive Immigration Reform
• Implementing the current laws equitably
• Promises to recognize the legitimate rights of large groups of undocumented people to remain in the United States.

Instead he has done the opposite, touting his large numbers of deportations, but failing to explain how they qualify as dangerous. He has also refused to use his political clout to separate the DREAM Act and get it passed.

The DREAM Act is a great place to start. The kids that would benefit from this are only here because of their parents decisions, and many of them don’t know any other country. It seems downright cruel (not to mention economically stupid) to deport someone who has lived in the United States since the age of 2, went to school and graduated from college. This type of person is ready to positively contribute to society and pay taxes.

How can we make Congress pass the DREAM ACT? We need to assess who are our partners in reform, and how we can leverage various resources to work together. Bacon points out several potential partners

• Some states- such as Utah, California, and New York. California recently passed a law stating that undocumented immigrants can receive in-state tuition. You can bet that California isn’t subsidizing their education with the goal of deporting them afterwards.
• Some Countries- Bacon mentions the radical idea of Mexico using its trade leverage to get the DREAM Act passed. I argue the opposite, Mexico probably wants all of these U.S. university educated graduates  deported to Mexico. Someone else paid to educate them and they are now ready to positively contribute to society, start new businesses, create new technologies and pay taxes.
• National Security Groups- the 12,000,000 undocumented immigrants are not leaving. The vast majority of them are not a threat to our national security, but a few of them might be. Providing incentives for them to come forward and self identify, allows us to gather information on the few that might actually be a threat and would thus actually improve our national security. As Bacon points out this turns the Tea Party’s most vicious arguments on its head.
• Churches and religious organizations- Most religious organizations see the inherent wrong in our immigration policy of deporting DREAM Act kids. Some churches have even openly threatened to provide safety to undocumented individuals. We need to strengthen our alliances with influential religious organizations, as the public and politicians are loathe to openly debate and fight their morality.
• Social Media- We saw how it created the Arab spring. We saw how a DJ started a big march in favor of immigration reform. We saw its impact in the Occupy Wall Street movement.
• Law School Clinics- these are intelligent impassioned youths ready to take action. We should help organize and guide their efforts.

Most recently a group of individuals has started a DREAM ACT March across the country from California to Washington, D.C. Let’s support them and Make the DREAM Act happen.

A FOIA request is used in many different situations when a person wants to view a copy of their records with a particular agency. For example, a person might have been stopped from entering the U.S. border by CBP a few years ago, but doesn’t know if they were issued a removal order. A deportation lawyer would often file a request with CBP (and possibly USCIS and DOS), to obtain a complete copy of the file. This way an immigration attorney and the client knows what the government knows.  Or someone might have applied for a visitor visa or an E-2 investor visa at a consulate and gotten denied. Filing a FOIA with the Department of State, might help determine the cause for the denial (did they suspect fraud, did they not think the person had temporary intent, or whatever else the reason might have been).

There are currently 111 separate FOIA offices (across various governmental agencies and departments), that offer the ability to file an online request.  Here is the link to the FOIA request form for various agencies.

The employment start date for the H-1B petitions will be October 1, 2012. Although the H-1B cap was not reached until November 22nd, 2011 for the FY 2012 filings, it is expected that the H-1B cap will run out much faster the FY 2013 filings because of the improving economy. USCIS is expecting to receive higher number of H-1B filings on the first day for FY 2013 filings than each of the past 2 years.

I applaud BALCA for using their heads and realizing that the difference in the job title did not mean that the job was not open to U.S. workers. If someone was interested in the position they would almost surely apply regardless of whether the word specialist or VP was used. As a result the CO’s decision was reversed and the labor certification was approved.

Regardless of the grounds for becoming a permanent resident in the first place, an individual must meet certain presence tests during his/her permanent residency to become a citizen. This includes residing in the U.S. continuously for 3 or 5 years, and being physically present in the U.S. for over half the time during the qualifying period as indicated in INA § 316(a).

However, there is an exemption under  INA § 316(b) for people who work abroad for: an American company (or a subsidiary), the US government, an American research institution, or a public international organization. This exemption makes a lot of sense so as to not punish someone for accepting a transfer to an overseas post.

Unfortunately, there is one large hurdle as INA § 316(b) also requires someone to be physically present and reside within United States, for an uninterrupted period of at least a year after becoming a permanent resident.  This means not one day out of the country to visit family, vacation, or business trips. Not even a quick jaunt over the border to Tijuana, Vancouver, or Niagara Falls.  For some people this might not be so hard, but for others it is nearly impossible.  Especially, when you consider the fact that few people will know over a year in advance that they will be stationed abroad so they can plan to remain in the United States.

Why become a Citizen in the first place? Here are my top 10 reasons to apply for U.S. Citizenship.

The American Immigration Council is a non-profit organization that “exists to promote the prosperity and cultural richness of our diverse nation”. It’s activities include educating people about the contributions of America’s immigrants, lobbying for sensible immigration policies and laws that encompass American values and constitutional and human rights, and they try to achieve justice and equality for immigrants in the United States.

Many influential individuals including our nations best immigration lawyers our members of the American Immigration Council.

For example, when Apple needed to switch its initial iPhone to scratch-proof glass, “a foreman immediately roused 8,000 workers inside the company’s dormitories… and within half an hour they started a 12-hour shift fitting glass screens into beveled frames. Within 96 hours, the plant was producing over 10,000 iPhones a day.”

Where America does still have an advantage, is its innovation. This is why our top companies still keep their corporate headquarters here, at least for now. Often many of the workers they need are American, but sometimes the worker with the right complimentary skill-set is from a foreign country.  This is especially true in the IT field. American companies need to be able to attract the best and the brightest in all fields without being stonewalled by government red-tape. Sure they might need to retain an immigration lawyer, to navigate the process, but there should always be a way for them to get the workers they need.

For example if a company wants to hire a highly skilled worker with a Master’s degree from another country, there is no easy solution. During part of the year they might be eligible for an H-1B visa, but once the cap is met, as it has been for the 2012 fiscal year, this is not a possibility. New visas aren’t released until October 2012, which is an eternity in today’s world. If the person is truly extraordinary they might qualify for an EB-1 green card  or O-1 visa, but this is a tough standard that many talented people and especially younger individuals (as they can’t demonstrate sustained acclaim) will not be able to satisfy.

And this is only the problems for established company. Entrepreneurs face other visa issues that often present even tougher hurdles to overcome.