Dear Readers:

Another week has passed and still no word from USCIS on filing H-1Bs under the 20,000 bonus quota mandated by Congress for graduates of US graduate educational programs. There is still little information available on what is behind the delay and when we’ll final be able to file applications. But we did learn this week of another serious miscalculation on the part of USCIS that may be playing a role. According to a report in the Washington Post, the USCIS issued 10,000 too many visas under last year’s quota of 65,000. According to the report, so many applications were filed at the last minute that they were unable to get the numbers figured out until it was too late.

This is not the first or even the second time something like this has happened. Certainly technology could be a solution. If the USCIS moved to a true electronic filing system, they would more easily be able to log cases against the quotas. The USCIS may argue that they are making rough calculations on how many cases to accept based on the knowledge that not all cases are approvable. But it would seem that an all electronic system would be a part of the solution. If all cases were filed electronically and the USCIS could see that the number of approved and filed cases combined added up to more than 65,000, they could then halt accepting applications and then open up the system as pipeline cases are denied, applications are withdrawn and approved cases are revoked by employers.

Instead of using e-filing to help deal with the H-1B cap, the USCIS shuts the system down as the cap is getting closer and during the period after the cap is reached until the new quota opens up (which, by the way, happens Friday of this week). That leads to an assortment of other problems in addition to the counting problem. For example, our firm has been trying to file a cap-exempt H-1B case this month that has been bounced twice because the USCIS has not been able to properly calculate the filing fee. The agency has been unable to get their hands around the issue that a case may be exempt from the H-1B cap, yet not eligible for the waiver of the $1500/$750 worker retraining fee. This has led to unnecessary delays and considerable additional labor on the part of USCIS (not to mention our firm).  A well-designed e-filing system could easily have properly and instantaneously accepted the case.

The fear of people “rigging the system” and getting a case properly into system via a cap exemption that really should be rejected is presumably driving the USCIS decision to shut down the system for more than half the year for H-1B applications. Yet an examiner is ultimately going to review the case and if an application doesn’t really meet the cap exemption test, it can be rejected anyway. Most employers are not going to be interested in filing cases that are ultimately going to be denied given the extremely high costs associated with filing H-1Bs – more than $3000 in government filing fees alone for some employers before you even factor in the legal fees. The loss of the filing fees is a powerful deterrent against employers simply filing non-exempt applications to buy time. And presumably an employer that cannot at least make a good faith argument supporting the cap exemption are liable to be found guilty of visa fraud.

In any case, USCIS needs vision in order to revise its system to ensure it is meeting the intentions of Congress and providing reliable, predictable and expeditious service to the public, E-Filing should be seen as the centerpiece of such an overhaul rather than an inferior alternative to paper filing that is tolerated by the agency merely because customers demand it,

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This coming week will be a critical one in Washington. Keep an eye on the atrocious REAL ID bill that was stuck on the House Iraq funding bill with no hearings or debate. REAL ID is known as the driver’s license bill because it imposes standardization requirements on the states in order to ensure undocumented immigrants can’t use licenses to get on planes, apply for federal benefits, or otherwise use the license for anything with a nexus to the US government. One can argue plenty about whether this new unfunded mandate on the states does more harm to public safety than good. After all, terrorists can probably get access to phony documents, but the untold numbers of undocumented individuals who will avoid learning the rules of the road and becoming safe drivers who will drive anyway will lead to the deaths of many, many Americans.

But REAL ID also does much more and these under-publicized provisions are truly scary. The worst is in the area of asylum petitions. REAL ID would give an incredible amount of new discretion to immigration judges to deny asylum cases where an applicant has proven a credible fear of persecution but has any inconsistency – even a minor one – in the rest of their story. This is a major shift in asylum law that even the bill’s supporters admit is more about making it harder to get asylum than it is about security.

The Senate takes up its version of the Iraq spending bill next week. This would be a great time to let your Senators know that REAL ID is a really bad idea. For more information, go to the web site of the American Immigration Lawyers Association at www.aila.org.

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Our Memphis office is pleased to announce the addition of attorney Bryant Stevenson. Bryant is a recent graduate of the Cumberland School of Law in Birmingham, Alabama. He can be reached at bstevenson@visalaw2.com and we’ll have his biography up on our web site soon. Welcome Bryant!

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My favorite story this week involves Canadian uber-blogger Jeremy Wright who was stopped at the border coming to the US for a blogging conference. Wright was stripped searched and banned for several years from entering the US. Why? Because DHS officials believe it is impossible to earn a living from a blog. How backwards are our government officials that they were not aware of the most important phenomenon on the Internet in the last few years. Speaking as a person who owes the growth of a law firm from a solo immigration practice to one of the nation’s largest almost entirely to the web, I can assure DHS that they need to revisit the issue. The case raises the serious problem at USCIS that government officials deciding cases everyday know nothing about the businesses, professions and industries they are judging.

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Finally, as always, we remind readers that we're lawyers who make our living representing immigration clients and employers seeking to comply with immigration laws. We would love to discuss becoming your law firm. Just go to http://www.visalaw.com/intake.html to request an appointment or call us at 800-748-3819 or 901-682-6455.

Regards,