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H-1B Cap Issues

by Michael Hammond and Chris Musillo

Immigration Appeals Court Approves EB2 case for an individual with a 3 year degree

The AAO, one of the Courts of Appeals in the immigration system, recently approved an EB2 I-140 for an individual with a full MS degree that had been attained following a 3 yr. Bachelor’s program. This is a major victory as the USCIS Service Center (particularly the Nebraska Service Center) had been issuing denials in such cases and had in fact, created their own policy, commonly referred to as the “6 year rule”, requiring that an individual have 6 years of education to gain EB2 approval when using the Masters degree standard. In the AAO decision, the Court ruled that if a credible education evaluator evaluates the Masters degree as the equivalent of a US Masters degree that the preceding education is not relevant.  We praise the AAO for its decision striking down yet another, in a long line of Service Center policies that have no basis in any statute or regulation but, are simply overreaching examples of a bureaucracy run amok.  It is not believed that there will be in effect on EB2 cases where the basis of the labor certification is a Bachelor’s plus 5 years of experience and the individual holds a 3 year bachelor’s degree.  It should also be noted that the Service Centers routinely choose not to follow AAO decisions and your individual case may need to be litigated in order to achieve the desired result.

Increased Civil Fines for Employers

The U.S. government has announced higher civil fines against employers for immigration violations.

The new rule will take effect on March 27, 2008.  

The most significant cost increases can be found in our recent Immigration Alert. To subscribe to our Immigration Alerts, please click here.

DOL Releases PERM Data from FY 2007

The DOL recently released FY 2007 data on the PERM program. The complete report can be found at  The data revealed that there was an 86% approval rate. The data also revealed that almost 50% of the cases filed required MS degrees or higher which indicates that the EB2 category may remain retrogressed for the foreseeable future. It was also interesting to note that only 21% of all cases filed were filed by the IT industry.

February BIM has been published

HLG’s February BIM has been published.  Our featured article discusses the intersection of the H-1B visa and the Labor Certification and was written by HLG’s Amy Dalal.  Click here to read this month’s issue.

H-1 Dependent?

HLG often gets questions on H-1 dependency, and the rules assocaited with H-1 dependency.  Back when the regulations were first drafted, we distributed a Memo to all clients explaining these rules.  The Memo is no less relevant today.


We get many questions about H-1 exempt petitions.  The starting point is to ask if the petitioner is a:

1) a University; or

2) a non-profit that is ”related” to a University; or

3) A Non-Profit research organization; or

4) A Non-Profit government research organization

The legal issue is what constitutes “related”.   The relevant USCIS Memorandum suggest that the two related organizations must either be co-owned or share ownership or management teams.  In practice, however, the law firm has seen a more lenient interpretation of the regulation. We have had many cases approved in situations where the petitioner has a formal affiliation agreement that delegates some of the clinical training to the petitioner or allows a co-mingling of employees between the petitioner and the research or university.

USCIS changes name-check policy

On Feb 4th, the USCIS issued a new policy stating that they will proceed with the adjudication of certain petitions, most notably I-485 cases if the FBI fingerprint check and IBIS check have both cleared but, where the FBI name check has been pending for more than 180 days without any negative information. It is not known whether this new policy will be extended to H-1b petitions, many of which remain held up in name check delays from FY 2007 filings.  

USCIS Issues Helpful Hints for H-1b filings

On Feb 1, the USCIS issued what they term as “Helpful hints” for a successful FY 2009 H1b filing.

About The Author

Michael Hammond is Principal and founder of Hammond Law Group, a law firm that handles immigration matters exclusively, with offices in Cincinnati, San Francisco, Seattle, and Manila. Michael Hammond has personally been practicing immigration law since 1989, and specializes in primarily IT and health care related corporate matters.

Chris Musillo is a partner at the law firm. He had served as an Associate since his graduation from the University of Cincinnati College of Law in 1998. Prior to law school, Chris spent three years working for a mid-sized New York City Financial Consulting firm. He is a graduate of Villanova University, Villanova, Pennsylvania.

The H-1 Cap Blog provides up to date information about all matters affecting H-1b workers and employers. At present, the key issue is the imminent arrival of March 31, 2008 so we will focus on issues surrounding the H-1b cap for FY 2009.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.