Comment on USCIS proposed regulation, “Modification of Registration Requirement for Petitioners Seeking to File Cap Subject H-1B Petitions”, RIN 1615-AC61 – by Alan Lee, Esq.

As published in the Immigration Daily on November 3, 2020

Below is our comment to the above proposed regulation which would allow USCIS to first give favor to the selection of H-1B registrations or petitions (if the registration system is suspended) on the basis of petitioners offering higher wage levels. Persons wishing to comment should do so through the federal e-rulemaking portal, by the end of day on December 2, 2020.

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Agency: U.S. Citizenship and Immigration Services (USCIS)
Document Type: Rulemaking
Title: 30 DAY COMMENTS CLOSE ON 12/2/2020; 60- DAY IC COMMENTS CLOSE ON 1/4/2021; Modification of Registration Requirement for Petitioners Seeking To File Cap- Subject H-1B Petitions
Document ID: USCIS-2020-0019-0001

Dear Sir/Madam:

I am submitting this comment in opposition to USCIS’s NPRM, USCIS-2020-0019; RIN 1615-AC61 for a number of reasons including its mistaken correlation of money to the worth of a position, discriminatory effect on US workers, its potential harm to the nation, and its violation of the US spirit against egalitarianism.

As a 35 year plus practitioner of immigration law, especially business-related, I believe that I have much practical and theoretical experience in the area of H-1B visas, including that the program was never meant to be as restrictive as the Trump administration would have us believe it to be in its latest bald attempt to make the program unusable to smaller sized organizations.

The proposed rule would allow USCIS to employ wage levels to either the H-1B registration system or to H-1B cap petitions in any year in which the registration requirement is suspended in such manner that selections would first be based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment.

Wage, however, is a poor barometer of a position’s worth. A Fortune 500 company can pay twice or even three times the going rate for college graduates than other workplaces. Many companies or other organizations do not have the resources to compete moneywise with large corporations that are able and willing to overpay for the same level of candidates.

Looking at government hiring practices shows the absurdity of correlating high pay with the worth of a position. The government hires many college graduates who are very bright, but it is unwilling or unable to compete moneywise with large corporations. Does that mean that a job in the government is less complicated or requires someone with lesser brains? The answer in most cases is a resounding no!

Wage inequality and discrimination against US workers is another problem with this proposed regulation. An employer wishing to have a good chance of getting an H-1B worker would have to up the level of pay – on many occasions more than the job is really worth – and wind up paying the alien more than it would a US worker for the same position. The employer might then be liable for practicing employment discrimination.

How will this country compete in the 21st century against the rest of the world? The best way is to nurture those who have come through the US education system and to attract others who may eventually help to keep the country competitive. That is the reason why it is so important to have programs like CPT, OPT, and the H-1B visa program. Rome was not built in a day, and neither do most people become superstars directly after graduation or even after a period of time of CPT, OPT, or even H-1B status. This proposal is part of the suite of regulations designed to raise H-1B qualifications to star level. But this nation needs not only superstars, but highly educated persons who are capable in their fields, and able to support the work of the superstars. The entire history of H-1B practice has been in this direction. The way to attract the highly trained from other countries is to lower and not constantly construct barriers. This nation is especially lacking professionals in the STEM sciences and playing catch-up to many other countries. Although there is now growing emphasis on STEM sciences in colleges and universities, much of America’s youth is more engaged in the liberal arts as STEM subjects are harder, boring to many, and exacting.

Many of the breakthroughs in the future will not come from Fortune 500 companies, but from small ones that cannot afford to pay artificially elevated wages to their employees. Did a small R&D biotechnology firm like Moderna have enough funding to pay level II, III or IV wages in its early stages to incoming graduates at the Master’s or PhD levels? From reports that the company’s experimental vaccine research was greatly accelerated by a $1 million contribution from the country western star Dolly Parton before the federal government stepped in with an offer of funding, one could believe that money was tight. The US will be the loser if USCIS ever implements this proposed regulation.

This country was built in large part by small businesses paying people a fair wage and not by the egalitarianism of big business outbidding the market and grabbing up the prize – in this case, limited H-1B visas. This proposed rule is against the American spirit of equal opportunity for all US businesses and pitches the field against smaller sized businesses.

For the reasons stated above, the proposed rule makes no sense except as a deterrent against use of the H-1B program by many organizations desirous of and in need of the candidates’ services.

Your consideration of this comment is appreciated.

Alan Lee, Attorney-at-Law
408 Eighth Ave., Ste. 5A
New York, NY 10001



The 2020 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 2 lawyers of Chinese descent in the 69 attorneys chosen in the area of immigration law, the other being Tsui H. Yee. This is the ninth time that Mr. Lee has been selected, having previously been honored in 2011, 2013-2019. He exclusively practices U. S. immigration and nationality law in Manhattan near Penn Station with his son and associate, Arthur Lee, Esq.

Please click here for the “Super Lawyers – New York Metro 2020


The 2019 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 2 lawyers of Chinese descent in the 67 attorneys chosen in the area of immigration law. This is the eighth time that Alan Lee has been selected, having previously been honored in 2011, 2013-2018.  He exclusively practices U. S. immigration and nationality law.

Please click here for the “Super Lawyers List for Immigration 2019

Article: Immigration Procedure – 10 Possible Items Of Interest

As published in the Immigration Daily on February 19, 2019

We thought that the following might be of interest and that you might not know about them or at least some of them. If you do not, good reading –

1. Does an applicant on DS-160 have to answer “yes” where an immigrant petition has been filed on behalf of the parent or spouse? The Department of State has amended 9 FAM 302.9-4 (B) (8) to state that “an applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” Consular officers many times expect the answer “yes”, so the American Immigration Lawyers Association (AILA) takes the position that a derivative beneficiary named on an immigrant petition may respond negatively or affirmatively to the question, with neither response resulting in a finding of material misrepresentation.

2. There is a new procedure for the consolidation of H and L visas for China beginning 3/1/19 as exclusive jurisdiction will only be in Beijing, Guangzhou and Shanghai. Chengdu and Shenyang will no longer be handling these cases.

3. The Pew Research Center currently estimates that the number of undocumented immigrants in the country fell from 12.2 million in 2007 to less than 11 million in 2016, and the number of illegal entries in 2017 was 310,000, the lowest of any year since 1971. So, where’s the national emergency?

4. What is the border? In a post by the American Immigration Council, the “border zone” encompasses 10 states in their entirety, touches dozens more, and contains 9 of the largest 10 cities in the country. Customs and Border Protection (CBP) has broad authority to operate within 100 air miles of any U. S. boundary, including setting up and operating immigration checkpoints on many routes within the 100 mile radius that eventually meets the border. Within 25 miles, agents have even more leeway such as entering private property without a warrant or permission. Based on news and other reports, there are 170 checkpoints with the vast majority spread across the Southwest border states.

5. U.S.C.I.S. reopened premium processing on February 19, 2019, for all H-1Bs filed on or before December 21, 2018. Such would apply mainly to H-1B transfers, amendments and concurrent filings since premium processing has been constantly open to extensions and recently to FY-2019 cap cases.

6. In looking at statistics on H-1Bs, a news report in the Los Angeles Times, “Immigrant tech workers struggle to get H-1B visas under Trump:’ I’ve never felt so helpless’” said that in 2017, 74% of all H-1B’s were approved, down from 87% the year before and the lowest approval rate in at least a decade. You can bet quite safely that 2018 results were even worse. From another source, the proportion of H-1B petitions denied increased by 41% from the 3rd to the 4 th quarter of FY- 2017. A major consequence of the increase in denials and the long waits is that many H-1B holders are now reluctant to change jobs because that means another adjudication by U.S.C.I.S.

7. Since June 2017, at least 14 lawsuits have been filed in federal courts around the country concerning H-1B denials. The plaintiffs are directly suing to federal court and bypassing the U.S.C.I.S. Administrative Appeals Office (AAO).

8. A suit was filed on 12/19/18 in the DC District Court on a H-1B extension denial without the parties going to the AAO, the plaintiff, a Minnesota finance and IT company, and the beneficiary a computer systems analyst in a position entitled “BI business analyst” or business intelligence business analyst. She had held H-1B status since October 2008 and had an approved I-140. The company’s stated requirements for the job were an MS in computer science, computer engineering, electrical engineering or related field +3 years as a technical analyst or similar analyst or consulting position involving business objects universes and reports. The denial was based upon the U.S.C.I.S. Service Center Director’s view that the occupation of computer systems analyst does not require a bachelors level of education or higher or its equivalent in a specific specialty.

9. Another H-1B suit filed in the same court on 10/16/18 and bypassing the AAO involved a large construction concern in Dallas filing an H-1B amendment/extension for the beneficiary as an assistant project manager in September 2017. The beneficiary, who had already been approved to work for the company under H-1B status as an equipment logistics engineer through June 2018, held an MS in construction management, and the employer’s stated requirement was a bachelors in construction management, engineering, or related. The Occupational Outlook Handbook (OOH) which is heavily relied upon by U.S.C.I.S. in determining H-1B specialty occupations, said that it was increasingly important for construction managers to have a bachelors degree in construction science, construction management, architecture or engineering. The denial was based on the U.S.C.I.S. Service Center Director’s view that, as per the OOH, the construction manager occupation is not a specialty occupation.

10. The liaison meeting of AILA and NY/NJ Customs and Border Protection (CBP) on 10/23/18 clarified that if an adjustment applicant is traveling on advance parole, and CBP learns that the application for adjustment of status to permanent residence has been denied when the person tries to reenter, CBP will not parole the passenger on the basis of the now denied I-485, but has discretion to defer the inspection. CBP will look to see if the I-485 was denied on criminal grounds. Based on CBP’s initial review, it may decide to defer the inspection for 30 or 60 days to allow CBP to talk to U.S.C.I.S. and determine the nature of the denial while the passenger addresses the denial with U.S.C.I.S. Once the initial deferred inspection period has ended, the passenger may be able to get a further extension if CBP believes the issue will be resolved favorably with U.S.C.I.S.

New H-1B Regulation “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-Subject Aliens” Becomes Final Changing The Order Of Selection But Delaying Pre-Registration System

As published in the Immigration Daily on February 1, 2019

The final rule will only have one component taking effect on April 1, 2019, the flip-flopping of the order of petition selection of U. S. Masters and higher degrees vis-à-vis bachelors and advanced foreign/U. S. for-profit institution degrees. The second part, the pre-selection system for organizations to register ahead of time for the opportunity to file cap subject petitions, has been postponed for this year.  Even in the proposed rule, U.S.C.I.S.  was hesitant on when it could be implemented, and many including this writer believed that it was nigh impossible for the system to come into being for this year’s H-1B selection (See “Article: Comment on U.S.C.I.S. New H-1B Proposed Regulation by Alan Lee, Esq., Immigration Daily, January 2, 2019).

Changing the order of selection by allowing all of the U. S. Master and higher degree cases to be put in the regular cap case selection, and then allowing the unselected to claim the U. S. Masters cap quota of 20,000+ numbers instead of running the U. S. Masters selection for the exclusive 20,000+ numbers first and then allowing the unselected to be put in the later regular cap selection was estimated by U.S.C.I.S. to yield another 16% or 5340 more numbers to U. S. Masters degree holders.

Was this a good strategy to favor those with U. S. advanced Masters or higher degrees? That is questionable as it is not merely a question of bachelors versus masters and higher degrees, but the exclusion of many persons who have had years of experience that those with recent advanced U. S. degrees do not have. Many with bachelor’s, master’s and PhD degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

This writer believes that the change in regulation applies mainly to those who have just acquired U. S. Masters degrees, many of whom have no relevant experience other than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s or advanced degrees from other countries and years of working in a particular field are oftentimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

On the pre-selection system, the agency noted that, “USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.” In response to comments, it is increasing the filing time period to 90 days instead of 60 days after selection, a change that would make it even more unlikely for the system to begin in FY 2020. In the final rule, it also eliminated the idea of staggered filings because of concerns over the potential for negative impact for beneficiaries relying on the existing cap gap provisions under which beneficiaries must still be in OPT status on the date of filing to be eligible for cap gap protections.

Article: The Art Of The Deal In Making The Wall

As published in the Immigration Daily on January 23, 2019

The art of the deal now is fixing the deal – to fold the present hand and start dealing a new one. The hounds are baying at him now on all sides, and he should know that it’s time for him to quit his present play if he wants to get the Wall. Mr. Trump created this whole fiasco when he put the livelihoods of 800,000 federal workers at risk in a long shutdown that he and the Republican Party own. And for what – a Wall projected to cost at least $24 billion of taxpayer money? A wall that will not stop drugs? A wall that can be tunneled under, dynamited, gone around through points of entry and the seas? To solve a humanitarian crisis of his own making when true concern would be multi-country conferences and agreements on solutions for the problems encouraging migration? To solve the “mass” invasion of the United States on the southern border when current statistics show arrests at almost an all-time low since the early 70’s? He has failed to convince the nation at large of the Wall’s necessity. So if he really continues to push for the Wall, he will have to ante up.

It goes without saying that Mr. Trump created the shutdown crisis in the hope that he could bowl over the Democrats before they established their agenda firmly in the House of Representatives. So the early stages of negotiation were to give nothing at all, pump up the absolute importance of the Wall as the penultimate solution against drugs, crime, illegal immigration, and terrorism, and attempt to shift shutdown blame on the Democrats, which was and is very hard to do as he initially said that he would own the shutdown. When that didn’t work, Mr. Trump then moved into the second phase of negotiation with his base and party (no direct negotiations with Democrats) offering temporary relief to 700,000 Dreamers and 300,000 holders of TPS (Temporary Protected Status). He offered what he could justifiably say to his base was actually nothing that these groups did not have before he took steps to remove their statuses. He would have to have been incredibly naïve not to realize that the offer was dead on arrival – so he should perhaps be given the benefit of the doubt that this offer was just his beginning point of negotiation although his base did not understand. To Democrats, he had taken these groups hostage in revoking DACA and TPS, and so he was only offering to put them back in the same state that they were before his actions. To his base, however, he was roundly criticized as an immigration appeaser and traitor.

Now it appears that Mr. Trump will be forced to move into the third phase of negotiation in which he will have to truly offer something to Democrats for the Wall or unilaterally end the shutdown with nothing to show for it except for the pain that he inflicted on the Nation. His negotiating hand of cards appears to have nothing in it. He is now being unanimously blamed for the shutdown, not the Democrats. Even members of his base are criticizing him for it at this point. His DACA and TPS hostages have largely escaped for now, with the Supreme Court yesterday giving notice that it would take no action on his request to review the DACA case, the upshot being that a decision is not expected until 2020. In addition, his revocation of TPS has been stayed by Judge Edward Chen of the Northern District of California in October, and there is no immediate threat to TPS members as the Ninth Circuit Court of Appeals will likely support the injunction, and Mr. Trump would have to take the case to the Supreme Court. Even if there was a threat to TPS members, such would not likely move the Democrats and the country who largely view DACA members as more blameless and have twice as many members. In the art of the deal, he has lost leverage, and he more than anybody else should understand this.

It remains to be seen what Mr. Trump will offer in the third phase, but anything that he offers will be looked at warily by all sides based on his long history of going back on his word. Democrats are thus far united in their belief that any legislation ending the shutdown should not include funding for the Wall. That does not mean, however, that pressure cannot be exerted to change their minds if the right offer is made. Two bills will be put on the floor of the Senate tomorrow, January 25th, a Democratic one reopening the government without wall funding, and a Republican one reopening with wall funding, the above Trump proposals, and a poison pill on asylum. Both are widely expected to fail to obtain the necessary 60 votes. In this writer’s opinion, what would truly get the ball rolling would be an offer of permanent status with or without a road to citizenship for an expanded class of DACA members which is projected to be about 1.8 million individuals. Perhaps also worthy of heavy consideration might be the present 700,000 DACA members getting some form of permanent status with a road to citizenship and the 300,000 TPS members status relief for the next 3 years. The point is that for Mr. Trump to break the logjam and obtain the funding that he wants for the Wall, he has to put forth something new that is untainted by himself. This will cause huge howls from his impassioned base, but if he intends to do the deal, he needs to put something of substance on the table.

Article: Comment on USCIS New H-1B Proposed Regulation

Today, January 2, 2019, is the last day to submit comments on the new H-1B proposed rule, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens.” Below is our comment on the pre-selection system part of the proposed regulation. Readers can still comment electronically through accessing Federal eRulemaking Portal: and following the website instructions for submitting comments.

December 31, 2018

Samantha Deshommes, Chief,
Regulatory Coordination Division
Office of Policy and Strategy
U. S. Citizenship and Immigration Services
Department Of Homeland Security
20 Massachusetts Ave. NW.,
Washington, DC 20529

Re: DHS Docket number USCIS-2008-0014 – Comment on H-1B Pre-selection System


Dear Ms. Deshommes,

The new H-1B proposed rule for changing the present selection system is absolutely unworkable for 2019. The period for comment ends on January 2, 2019, and there will undoubtedly be tens of thousands of comments that U.S.C.I.S. will have to go through. Then the proposed rule will have to wend its way through the Office of Management and Budget and even your office cannot predict when that agency will finish up with its work on the proposed rule. It is almost a certainty that a final rule will not be ready at the earliest until March or April if even then. The time to implement the rule will also take months as employers will have to submit a form identifying aliens that they wish to sponsor and U.S.C.I.S. would have to conduct the selection process. In just examining that implementation, there will be a period of time from date of final rule – likely 60 days although the proposed rule is optimistic in estimating at least 30 days advance notice – to give fair notice to employers through seminars, symposiums, and FAQs as to how they are supposed to fill out and submit a pre-selection form. Following the deadline for doing such, the proposed rule says that the registration period will last for a minimum of 14 calendar days. U.S.C.I.S. will then take approximately 1 week to assimilate all the applications and run the computerized selection process, and then an unknown period to notify all employers that their pre-application has been accepted (the amount of time that it has normally taken U.S.C.I.S. to run the regular selection and notify employers with receipts is 1-2 months). Following that, employers are to be given 60 days under the proposed rule to file the H-1B cap subject petition for the named beneficiary.

Adding it all up, and taking the most optimistic timeframe in which the final rule is ready by March or April 2019, U.S.C.I.S. is looking 5-7 months from that point (August-October 2019) before the first H-1B petitions can be filed. Even now, many H-1B petitions filed in April 2018 have not yet been adjudicated for over 8 months and U.S.C.I.S. is currently being sued over the delays.

U.S.C.I.S. believes that it will save much time in having a pre-selection process, but that is not true – the agency will spend even more time in pre-selection than it does under today’s system. Petitions may flood in under the present format, but the frontline clerical/cashier personnel only enter them as selection numbers in either regular or U. S. Masters degree categories before running the selection process. For FY-2019, U.S.C.I.S. ran the selection process for both regular and Masters degrees on April 11, 2018, only 5 days after the closing of the acceptance period for cap-subject H-1B’s.

Cost-wise, it appears clear that U.S.C.I.S. is low-balling the cost of implementation and upkeep of the proposed new system by stressing the cost benefits to the public rather than to itself. Even looking at its table 19 of U.S.C.I.S. costs for unselected petitions in FY-2017, such costs were associated with handling and shipping costs which could easily be reduced by shredding rejected petitions rather than sending them all back to the petitioners. Petitioners by and large already keep a copy of their submissions.

The proposed new process only burdens the present system with another layer of bureaucracy which will not help. Even if the initial difficulties are ironed out after the first year (probably FY-2021), there is still much to question. Will it help to force employers to early preselect their candidates long before they are able to submit petitions for them – especially as the proposed rule allows for no substitutions? The minds of organizations and H-1B candidates change over time, and employers either may later decide that the candidate is not suitable or the H-1B candidate decides to change organizations before the time for submitting the petition. The format of the pre-selection application is also a question. Will it ask the employer to also designate the H-1B position? Would it then be stuck with the pre-selection application designation? That would seriously damage the process as the employer may decide that another position is more suitable for the candidate between the time of the pre-selection and H-1B submission. In addition, if acting without counsel’s assistance in the pre-selection application, the employer may unwittingly commit to a non-specialized occupation, which would ultimately doom the H-1B petition.

Given the above obstacles, U.S.C.I.S. should not attempt to rush any change in selection process for this coming H-1B season. For that matter, it should not change the process at all by adding another layer of bureaucracy. It is clear that the present system is not behind the slowness and backlog of H-1B adjudications as the process at this time only takes 5 days from the ending period of acceptance to performing the random selection. U.S.C.I.S. should seriously consider whether the pre-selection process will actually save the government any time or significant monies or simply add more regulation onto an already heavily regulated area.

Thank you for your courtesy and kind consideration.

Very Truly Yours,

Alan Lee, Esq.

Article “Comment on Flipping Selection Process of Regular and U.S. Masters or Higher Graduates”

Below is the first of 2 comments that we are submitting to U.S.C.I.S. on the new H-1B proposed regulation. Hopefully it will be of interest to the readers.

December 31, 2018

Samantha Deshommes, Chief,
Regulatory Coordination Division
Office of Policy and Strategy
U. S. Citizenship and Immigration Services
Department Of Homeland Security
20 Massachusetts Ave. Nw.,
Washington, DC  20529

Re:      DHS Docket number USCIS-2008-0014 – Comment on Flipping Selection Process of
Regular and U. S. Masters or Higher Graduates

Dear Ms. Deshommes,

The proposed revision to the H-1B rules attempts to change the present selection process by flipping the order of random selection to favor those with U. S. Masters degrees or higher. This is highly unwise as it is not merely a question of Bachelors versus Masters degree, but the potential exclusion of many with bachelor’s degrees who have years of experience that those with U. S. masters degrees do not have. Many with bachelor’s degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

The proposed change in regulation mainly applies to those who have just acquired U. S. Masters degrees, many of whom have no other relevant experience than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s degrees and years of working in a particular field are oftimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

As such, U.S.C.I.S. should keep the random selection process as it now is.

Thank you for your courtesy and kind consideration.

Very Truly Yours,

Alan Lee, Esq.

Article “U.S.C.I.S. Releases Trove Of Information In New Proposed Rule, “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-subject Aliens””

as published in the Immigration Daily on December 3, 2018.

U.S.C.I.S.’s newly proposed rule of December 3, 2018, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” does more than announce a proposed regulation, but also discloses many relevant statistics concerning H-1B numbers.

The rule itself proposes to put into place an employer preregistration system under which organizations would be forced to register within a 14 day period for the chance to submit a new cap-subject H-1B petition within staggered 60 day time frames to be designated by U.S.C.I.S. if the preregistration request is selected. The preregistration in effect would replace the current H-1B selection process under which 85,000+ petitions are selected in the first 5 business days of April. A second facet of the rule allows U.S.C.I.S. to flip-flop the selection process of the U. S. Masters cases and the regular cap cases in an attempt to enhance the chances of U. S. Masters candidates. U.S.C.I.S. estimates that reversing the current procedure of first randomly selecting the U. S. Masters cap cases and allowing the remainder to also be considered in a subsequent regular cap case selection, and instead allowing all the Masters cases to be placed in regular cap case selection, and then allowing the remainder to claim the Masters cap quota of 20,000+ numbers, would yield a further 5340 numbers or 16% more to the U. S. Masters cap cases.

The two parts of the proposed regulation are considered separate by U.S.C.I.S., and the second part can go into effect even if there are technical difficulties with implementing the preregistration system. It seems unlikely that the first part will come into being for this coming H-1B season because of many obstacles including complexity but principally the timing – the time for comments to close is January 2, 2019, it will take much time for the agency to go through the tons of comments that are expected, the regulation will have to go through OMB to become final, and H-1B season must start on April 1, 2019. Any idea of delaying the start of the H-1B season would be horrendous given U.S.C.I.S.’s present inability to handle the current load of this past year’s new H-1B petitions. Even now, many H-1B petitions submitted in the first week of April 2018 remain unadjudicated.

Now to the numbers. There has always been question as to how many more H-1B petitions are selected than the announced 85,000 per year (65,000 for the regular cap and 20,000 for the U. S. Masters cap). Practitioners have variously attempted to guess the number as U.S.C.I.S. allows a number of petitions over 85,000 to be “wait listed” by estimating the number of petitions that will be denied, withdrawn, or otherwise found ineligible. The number is 12,198, the average for 5 years from FY 2013-17 according to the proposed rule. With an average selection of 97,198 petitions per year, and U.S.C.I.S. disclosures that it presently selects 13,495 over the usual 20,000 Masters cap candidates (33,495) leaving 63,703 regular cap selectees, rough estimates can be made when coupled with U.S.C.I.S. figures of an average of 192,918 petitions received (137,017 regular cap and 55,900 U. S. Masters) that historically, U. S. Masters comprise 34.46% and regular cases 65.54% of the selected cases; that when viewed through the prism of the 137,017 and 55,900 divided petitions, U. S. Masters were selected 60% and regular cases 46.5%; and that overall of the 192,918, U. S. Masters comprised 17.36% and regular cases 33%.

Under the proposal of flip-flopping the random selection process to give more numbers to the U. S. Masters cases, and using the same historical numbers, U. S. Masters would comprise 40% of the selected cases and regular cap 60%; that when broken down into their individual applied for categories, U. S. Masters would be selected at a rate of 69.47% and regular cases at 42.6%; and in looking overall at the historical average of 192,918 submitted petitions, 20% would be U. S. Masters and 33% regular cases.

The above numbers are approximate as U.S.C.I.S. only gave current statistics on the number of U. S. Masters cases selected and the author can only believe that the statistics are for one year. As FY 2017 is the most recent covered in the proposed rule, perhaps a better reading is done using that year. U.S.C.I.S. statistics show that it received 198,460 petitions of which 87,380 were from U. S. Masters and 111,080 from regular cases. It selected 96,301 petitions for the year. Using the same figures for selection of U. S. Masters cases, the percentage of U. S. Masters of the 96,301 selectees was 34.78% and regular cases 65.22%; that divided into the categories for which petitions were submitted, U. S. Masters were at 38.33% and regular cases 56.54%; and overall of the 198,460 submitted cases, U. S. Masters garnered 16.88% of the selections and regular cases 31.65%.

Would the numbers change dramatically given the proposed reversal of the random selection process? Not dramatically. Of the 96,301 selected cases for FY 2017, a flip-flopping would have left H-1B Masters at 40.32% and regular cases at 59.68%; that judged by the categories in which they applied, U. S. Masters would have been accepted at 44.4% and regular cases at 51.7%; and overall in the total 198,460 submitted petitions, U. S. Masters would have been picked at 19.57% and regular cases at 29%.

Looking forward, it would appear that the second part of the preregistration system proposed regulation is much more likely to be installed for this April than preregistration as it is an easy step to implement and U.S.C.I.S has made clear in the proposal that it can suspend the H-1B registration process merely through an announcement on its website while still reversing the order of counting the petitions towards the H-1B allocations. So it is entirely possible that the regulation could become final as late as March with only the second part coming into effect. Finally the author notes that those contemplating the filing of regular cap cases should not be discouraged as he was surprised to find that within the categories for which employers applied for their candidates, the approximate five-year average of selection for those applying under regular cap cases was 46.5%, and the most recent year given in the proposed regulation (FY-2017) showed a selection rate of 56.54%.

Article “The Dwindling Migrant Caravan Marches On As Trump Glowers And Threatens”

As published in the Immigration Daily on November 6, 2018.

In our article last week, ” Why the Migrant Caravan of 7000 (Whoops! 5000) Is Not Concerning ,” we laid out hypothetical numbers that even if 4000 came in, only approximately 668 would be left at the end of six months under the Trump no-tolerance policy, and asked what was the crisis. This week we have more statistics on this Trump-made crisis from the military itself which on October 27th made an estimate that only 20% of the 7000 would even reach the border. That would mean only 1400, and under the no-tolerance policy in which only 16.7% of the previous migrant caravan were left in the US after six months, only approximately 234 would remain after that time. So again, what crisis? Currently the caravan is still about 500 miles away from the border and already down to about 3500. Over 3000 have already applied for asylum in Mexico and many others have gone home. The migrants are now strung out between the city of Córdoba in Veracruz and Mexico City, and the remnants are not expected to arrive for at least 2 weeks traveling between 20-30 miles per day. Such would also be the fate of 2 smaller caravans of 1000-1500 just entering Mexico.

Yet in the face of the dwindling numbers, Mr. Trump continues to pour on the rhetoric saying that he would send up to 15,000 troops to the border. At that rate, there would be more than 10 soldiers to greet each of the 1400 who finally made it to the nearest point on the Southwest border. How long would he keep our troops there? A 6000 troop deployment in the Bush administration between 2006-2008 cost the American taxpayers $1.2 billion. A conservative estimate of the cost of deployment from now to December 31st is $200 million. While the numbers are mind-numbing, $200 million recently supported more than 13,000 transitional housing beds for homeless veterans under the VA’s grant and per diem program. $200 million was also the funding amount by the Federal Railroad Administration for 28 projects in 15 states to implement positive train control (PTC) systems to automatically brake or slow down speeding trains.

In addition to the number of troops at the border, Mr. Trump’s call to arms has resonated with militia groups, who are preparing to mobilize to the border to defend against the migrants and further increasing the chances of confrontation and innocent lives being lost. The Trump vitriol has also not been lost on the Border Patrol, which feels more free to use intimidation, substandard conditions of confinement and violence in dealing with migrants on the border than at any time during the Obama years.

To the idea that migrants might throw rocks at the American troops, Mr. Trump initially said that if US troops faced rock-throwing migrants, they should react as though the rocks were “rifles.” The Nigerian Army used his words last week as justification for its estimated killing of more than 40 people and wounding of 100 by rock-throwing protester by posting the Trump video including his words, “They want to throw rocks at our military, our military fights back.” On November 2d, Mr. Trump reluctantly took back the words saying that migrants would not be shot if they threw rocks. However, the tone has been set.

Words are dangerous, especially coming from the leader of the most powerful country in the world. Yet Mr. Trump and his Republican Party seemingly have no regard for the truth or for the consequences of their lies. The Washington Post estimated that President Trump has made 6,420 false or misleading claims since he took office through October 30, 2018. Mr. Trump has been responsible for inflaming and encouraging the actions of all of the fringe right, including neo-Nazis, white nationalists, white supremacists, anti-Semites, Holocaust deniers, conspiracy theorists, and the Ku Klux Klan. His party is terrified of offending him and his base for fear that congressmen and senators running for election will be turned out of office. The actions of Mr. Trump and the inaction or collusion of the Republican leaders in not repudiating him are responsible for what happened in Charlottesville, the synagogue attack in Pittsburgh 10 days ago, and mailing of 15 pipe bombs to prominent Democrats including ex-presidents Obama and Clinton by an ardent Trump supporter. Mr. Trump’s foreign-policy record of divisiveness is no better in driving away long time allies and cozying up to some of the worst leaders in the world. His actions have unilaterally made the world less safe, and unleashed the worst acts of foreign leaders who believe that there will be no consequences or material rebuke from America.

Is there no further reason to get out and vote tomorrow for an entire Democratic slate? The old measure of trying to figure out whether this candidate is a little bit better than that candidate no longer applies in this fractured country with an abomination of a president holding his party in pocket.