Comment: H1B Cap Report Card

The FY 2014 H1B season is over, and the cap was hit in the first week, triggering a lottery. A combined total of about 125,000 petitions were received by USCIS for the twin caps - the regular 65K H1B cap (less Singapore and Chile), and the 20K Master's cap. USCIS thus received about a third more petitions than H1B visas available. Here is the post-mortem, as to forecast and as to policy.

First, the forecast. Immigration Daily had determined, prior to the USCIS announcement in mid-March, that the applications during the first week of April would not be enough to trigger a lottery. Subsequently, a mini-panic was caused by the USCIS announcement that the lottery would be triggered. Who was right - Immigration Daily or USCIS? We don't know - those in the best position to decide are our readers. You can decide, through the following thought-experiment. If, of the petitions you filed for cap-subject cases, less than two-thirds would have been filed prior to April 5, absent the USCIS announcement, then Immigration Daily was right. On the other hand, if, of the petitions you filed for cap-subject cases, more than two-thirds would have been filed prior to April 5, absent the USCIS announcement, then USCIS was right.

Either way, it is the business of the press to make forecasts. Naturally, some of these forecasts will be right, and some will be wrong. Over the years, we hope that we will be right more often than not, but nothing is guaranteed of course. A newspaper, such as Immigration Daily, lives in the public eye - so either way, a newspapers' readers have transparency over a newspaper's doings, including our forecasts. This transparency is a form of control, since a newspaper cannot live without its readers. It is completely otherwise when it comes to a government agency, over which the immigration law community has no control (especially when said agency is not taxpayer-funded), and that brings us to the policy behind the lottery announcement. Even if it was well-intentioned, it is hard to avoid the conclusion that politics played a part in USCIS's announcement. At the stroke of a pen, USCIS has now created 40,000 petitioners who have a stake in getting CIR through Congress in the coming months. This is so, since should Congress enact a statute, immediate relief could be made available to those who did not make this year's H1B lottery. Talk about a lottery, especially with sob stories of heart-rending cases who lost out on the lottery, will make for good theater in the upcoming Congressional debates. While Immigration Daily strongly supports increases in H1B numbers, and strongly urges Congress to get immigration reform enacted promptly, we believe that the executive branch should not be in the business of lobbying Congress - our system of separation of powers forbids this, and it is exactly this that USCIS's lottery announcement has caused. We urge USCIS to refrain from doing the press's job in the future, and urge it to use its forecasting prowess to better coordinate with Fedex to ensure that petitions timely entrusted to Fedex in good faith make it timely to USCIS.

Immigration Daily is proud to serve the immigration law community, we are brave enough to stick our necks out in making forecasts, and we are confident in our readers' understanding and support when we are wrong (which is inevitable from time to time). In the firestorm that lies ahead with Congress taking up CIR in just a few days, our readers can rest assured that Immigration Daily will report what we see - without fear or favor, in the proud tradition of America's free press. Share your thoughts by writing to

Article: Does the H-1B Cap Help or Hurt CIR? by Robert P. Webber and Kelly Thompson

Article: Construction Industry Trade Groups' Concerns on Gang of Eight's Guest Worker Program are Misplaced by Christopher M. Pogue

Blogging: H-1B CAP LOTTERY ANNOUNCED by Chris Musillo

Blogging: Another Way in Which the H-1B Cap Hurts America by Roger Algase

News: USCIS Issues Correction to Notice on Revised Employment Eligibility Verification Form

News: Obama Administration Describes Record on Human Trafficking Issues

Focus: is pleased to announce a new edition of The PERM Book and a pre-publication discount.The expectd publication date is June 2013
The Editor is Joel Stewart and contributors will be announced soon.



A.  PERM Regulation
B.  Articles by PERM Writers


A.  Frequently Asked Questions (FAQ) by Lawrence Rudnick
B.  Summary of DOL PERM Stakeholders Meetings by Lorna Rogers Burgess
C.  Frequently Asked Questions


A.  The New 9089 PERM Form by Linda Rose
B.  What DOL told OMB about PERM by Jay Solomon
C.  New ETA Form 9089 and Instructions, Application for Permanent
     Employment Certification
D.  Old ETA Form 9089, Application for Permanent Employment Certification
E.  Old ETA Form 9089, Instructions
F.  Old ETA Form 9089 Electronic Filing Instructions
G.  ETA Form 750A
H.  ETA Form 750B
I.    ETA Form 750 A and B, Instructions
J.   ETA Form 9127, Foreign Labor Certification (FLC) Quarterly Activity Report


A.  Overview of PERM Cases
B.  Overall PERM Flow Chart
C.  Employer Checklist
D.  Alien Checklist
E.  Job Offer Checklist
F.  Attorney/Agent Checklist
G.  Prevailing Wage Preparation Checklist
H.  Prevailing Wage Quick Guide
I.   Recruitment Checklist
J.  Express SVP Checklist
K.  PERM Audit Checklist: 10 Important Points
L.  Real and Virtual PERM Addresses
M.  What do PERM and H-1B Visas Have in Common?
N.  Attorney Competency Self-Test
O.  Sample PERM Cases


A.  Introduction to BALCA by Joel Stewart
B.  BALCA PERM Quick Reference Guide by Joel Stewart
C.  BALCA En Banc Quick Reference Guide by Joel Stewart
D.  BALCA Hearing Procedures


A.  Introduction to Federal Court Litigation by Sam Udani
B.  Exhaustion of Administrative Review by Michael E. Piston
C.  Federal Court Litigation-PERM by David B. Pakula
D.  Sample Pleading by Michael E. Piston


A.  Prevailing Wage Survey & Overview by Jane Goldblum
B.  Wage Worksheet Simple Systems 1 by Jane Goldblum
C.  Wage Worksheet Simple Systems 2 by Jane Goldblum
D.  656.40 Perm Reg. Determination of PW
E.  656.41 Perm Reg. Certifying Officer Review of PW
F.  Prevailing Wage FAQ
G.  Appendix A By Alphabetical Order
H.  Appendix A By SOC Classification Order



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Headline: Immigration Bill Ready for Debate Click here

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CLE Immigration Event
Memphis, TN - (May 17-18, 2013) The Federal Bar Association in conjunction with the Memphis Mid-South Chapter of the FBA; American Immigration Lawyers Association (AILA); and the U.S. District Court for the Western District of Tennessee, invite you to join us for one of the most exciting national immigration conferences available this year. The confirmed speaker line-up is a who's who of well-renowned AILA attorneys and government officials including Judges from The US Circuit Court of Appeals, EOIR and other former and current Immigration Judges from across the country, and counsel from The Office of Immigration Litigation (OIL). This conference also offers the opportunity to hear from a panel of ICE and USCIS supervisors as they discuss various immigration issues that affect both the Mid-South and the nation as a whole. Program includes special tracks for pro bono attorneys as well as criminal lawyers. Earn up to 14.5 CLE hours (with a possibility of 3 ethics hours offered) and have fun, too. Early bird deadline is March 31, 2013. This Conference is limited to 400 Participants. Feel free to check out the preliminary brochure. Also, check out the housing and other information see here.

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ComingsNGoings: Immigration Event
May 9 - 8:00 am-4:00pm (CST) - Dallas, TX - The USCIS Texas and Nebraska Service Centers invite all those interested to attend the Business Representatives Engagement where there will be an opportunity to meet with USCIS subject matter experts to discuss business and employment-related immigration issues. To RSVP, please provide your full name, title, and the office or organization you represent to Jennifer Kuylen at no later than April 30, 2013.

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Publisher: Sam Udani ISSN: 1930-062X
Advisory Board: Jason Dzubow, Rami Fakhoury, Matthew Kolken, Chris Musillo, Lory Rosenberg, Greg Siskind, Joel Stewart, Margaret Wong