USCIS Usurps Congress on H-1B (read this one)

Date: Thursday, March 10, 2005 3:34 PM

JOB DESTRUCTION NEWSLETTER
by Rob Sanchez
March 10, 2005 No. 1211

(If you received a previous version of this newsletter, ignore it and
read this one)

In my last newsletter I warned that the USCIS may use their proposal to
change H-2B as a precedent to further erode the scant protections in
the H-1B regulations. Little did I imagine that that the USCIS isn't
interested in setting precedents, instead they are usurping the
authority of Congress by writing their own laws - even if their changes
contradict the laws that Congress passed!

On March 8 the USCIS announced that they would accept H-1B applications
for the 20,000 additional visas that Congress approved in last year's
omnibus spending bill. The big surprise happened when the USCIS
announced that they would take visas from any foreign national despite
the fact that Congress specifically required that the 20,000 visas
could only go to foreign students who graduated with a Master's or PhD
degree from U.S. universities. If this goes unchallenged by Congress it
may signify that our representative government is servile to government
bureaucrats who answer to the President. Does the word DICTATORSHIP
come to mind?

In the statement below the USCIS acknowledges that the law requires
that the H-1Bs have advanced degrees, but they are simply going to
ignore the mandate and accept visas from anyone who wants to work in
the U.S. on regular H-1Bs.

-U.S. Citizenship and Immigration Services (USCIS) currently is
preparing regulations for the implementation of the Omnibus
Appropriations Act for Fiscal Year 2005. Pursuant to an exemption
established under this Act, USCIS will be able to process additional
petitions for H-1B workers for FY 2005. The available petitions for
FY 2005 will be applied to all qualified H-1B nonimmigrant aliens,
and will not be limited to those individuals holding a master's
degree or higher degree from a U.S. institution of higher learning.

In all my years of activism I never dreamed I would agree with Harris
Miller on anything, but look at what his organization CompeteAmerica
has to say about this power grab by the USCIS:

"The agency's decision to reverse its position on the allocation
of the additional visas is troubling at two levels. First, it
seems to ignore Congressional intent. Second, it shows blatant
disregard for the business planning process. Companies across
the country have made staffing decisions over the past four
months based on the agency's original statements.

CompeteAmerica isn't objecting to the USCIS announcement because they
are worried about the American worker or because they suddenly had a
flash of ethics. Their true colors come out in the second objection
where it can be seen that they are very stressed out by the fact that
the big corporations they represent had reserved all the visas for
themselves. The USCIS threw a monkey wrench in their well-oiled plan by
suddenly changing the rules. A HR shill quoted in their press release
sobs that the whole thing is "very disruptive and damaging." Boo! Hoo!

CompeteAmerica is complaining because now they will have to compete for
visas. Kinda ironic, isn't it?

The India Times puts the situation in such a clear perspective - and
their description of the coming stampede is right on target:

The stage, it seems, has been set for an H-1B visa stampede.
The United States Immigration and Citizenship Services (USCIS)
has announced that all qualified non-immigrants could apply for
the additional 20,000 H-1B visas.

One thing I like about the Indian press is that they have a very good
understanding of our Constitutional process, unlike most of our
politicians and bureaucrats:

As it stands, the interpretation by the USCIS is contrary to the
law that was passed late last year.

OK, jokes aside, my guess is that the USCIS will not get away with this
change since CompeteAmerica opposes it. Our shaky coalition of
activists has about a 100% track record of losing when we object to
laws or regulations that destroy American jobs, but Harris Miller
almost always wins. That's because he has lots of money and he knows
how to use that money to bribe Congress and woo the press.

It makes me sort of nauseous to even contemplate cheering Harris Miller
in his battle against Harris Miller, but cheer I will! Here is a
cheerleading chant that I wrote to urge Harris "the Shiller" Miller
onto victory:

American Workers, Here we go
Hey crowd here's what we want
Victory for the Shiller
Victory for the Shiller (Toe-touch)
V-i-c-t-o-r-y (ripple)
Victory for the Shiller (wave to the the crowd)

Go, Fight, Win
Lets Go Shiller, Let's Go!

Repeat 3 times, and then wave battons and jump in the air!

Material Used for this newsletter

http://www.workpermit.com/news/2005_03_09/us/uscis_h1b.htm
US - USCIS makes 20,000 H-1B Visas available

http://www.competeamerica.org/news/alliance_pr/20050310_h1b.html
USCIS H-1B Announcement Undercuts New Law

http://economictimes.indiatimes.com/articleshow/1048063.cms
US offers 20,000 more H-1B visas

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.workpermit.com/news/2005_03_09/us/uscis_h1b.htm

US - USCIS makes 20,000 H-1B Visas available

09 March 2005

In a press release dated March 8, 2005, the United States Citizenship
and Immigration Services (USCIS) stated that the additional 20,000 H-1B
petitions, created under the Omnibus Appropriations Act, will be
available to all qualified H-1B nonimmigrant aliens and will not be
limited to those aliens holding a master's degree or a higher degree
from a US institution of higher learning for the current Fiscal Year
2005. Therefore, employers will be able to petition the USCIS for
approval of an H-1B application for any individual that qualifies under
H-1B legislation.

In the press release, the USCIS advised employers not to file H-1B
petitions seeking to employ an H-1B worker until after the USCIS
publishes guidance in the Federal Register. The USCIS further stated
that it would reject any new H-1B petitions that are filed in advance
of the effective filing date as set out in the USCIS' forthcoming
Federal Register notice.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.competeamerica.org/news/alliance_pr/20050310_h1b.html

NEWS CONTACTS:
Susan Mora
(202) 822-9491

FOR IMMEDIATE RELEASE
March 10, 2005

USCIS H-1B Announcement Undercuts New Law

Decision Inconsistent with Past Agency Statements and Congressional
Intent

Washington, D.C. - Compete America today criticized the United States
Citizenship and Immigration Services for a recent announcement
regarding its intended procedures for processing applications for
20,000 supplemental H-1B visas.

The additional visas were made available by Congress last year to
provide an immediate remedy to the H-1B visa crisis. Senate and House
negotiators agreed on language which would exempt up to 20,000 foreign
students with advanced degrees granted by U.S. universities from the
annual H-1B cap.

H-1B visas are for temporary employment, and are reserved for highly
educated foreign nationals - often employed in scientific research,
medicine, technology and education - and are capped at 65,000 annually.
The 2005 cap was reached on October 1, 2004 - the very first day of the
Federal government's new fiscal year - signaling to Congress that there
was a crisis in the program.

"Congress responded by exempting 20,000 foreign graduate students from
the H-1B cap, enabling these highly educated professionals to remain in
the United States. The solution makes sense. These workers contribute
significantly to our economic growth," said Sandra Boyd, National
Association of Manufacturers Human Resources Policy Vice President and
Compete America Chair.

Statements USCIS issued last fall regarding the procedures that would
be used to distribute the 20,000 new visas clearly illustrate that the
agency understood Congress' intent to make these supplemental visas
available solely to those candidates meeting the Masters and PhD degree
requirement. An agency statement released yesterday, however, indicates
that USCIS intends to make the additional visas available on a
first-come-first-served basis to any generally qualified H-1B
applicant.

"The agency's decision to reverse its position on the allocation of the
additional visas is troubling at two levels. First, it seems to ignore
Congressional intent. Second, it shows blatant disregard for the
business planning process. Companies across the country have made
staffing decisions over the past four months based on the agency's
original statements. This about face is exacerbated by the fact that
the agency is not accepting applications for the additional
visas-despite the fact that Congress told them to make the numbers
available on March 8, 2005. USCIS has, in essence, sent all these
businesses scrambling. It's very disruptive and damaging," added Lynn
Shotwell, Executive Director of the American Council on International
Personnel.

Compete America (www.competeamerica.org) is a coalition of more than
200 corporations, universities, research institutions and trade
associations concerned about legal, employment-based immigration and
committed to ensuring that the United States has the highly educated
workforce necessary to ensure continued innovation, job creation and
leadership in a worldwide economy.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://economictimes.indiatimes.com/articleshow/1048063.cms

US offers 20,000 more H-1B visas
URMI A GOSWAMI

TIMES NEWS NETWORK[ FRIDAY, MARCH 11, 2005 12:44:49 AM]
Sign into earnIndiatimes points
NEW DELHI: The stage, it seems, has been set for an H-1B visa stampede.
The United States Immigration and Citizenship Services (USCIS) has
announced that all qualified non-immigrants could apply for the
additional 20,000 H-1B visas.

This is a departure from the provisions of the Omnibus Appropriations
Act for fiscal 05.

The Act provided for 20,000 cap exempt H-1B visas for individuals
holding a masters or higher degree from a US institution of higher
learning. Given that the USCIS advisory is not in line with the law, it
could well delay the awarding of these additional work visas.

Or could it be a harbinger of good news: and increase the cap limit for
the next fiscal?

Petitions for these additional 20,000 visas should have been possible
from March 8, as per provisions of the Act.

However, the USCIS first established March 9 as the date when the law
came into force. Subsequently, it backtracked and established March 8
as the effective date.

However, all this was academic as the agency asked employers not to
file H-1B petitions seeking approval for workers, who may benefit from
these provisions until USCIS publishes rules concerning the Visa Reform
Act and related issues in the Federal Register.

No alternate date for filing has been announced. Instead, the agency
repeats its earlier advisory that "USCIS will reject any new H-1B
petition that is received prior to the filing date set forth in the
regulations."

Broadening the ambit of those who qualify to apply for an H-1B visa
under the provisions of the Omnibus Appropriations Act for fiscal 05
has given rise to some speculation.

As it stands, the interpretation by the USCIS is contrary to the law
that was passed late last year. However, immigration experts contend
that the notice in the Federal Register would possibly explain this
development.

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