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Immigration Law

Bender’s Immigration Bulletin – March 15, 2011

USCIS Proposes New H-1B Process

USCIS has issued a proposed rule that would require employers seeking to bring in an H-1B worker subject to a cap to register electronically with USCIS during a set period before the start of the filing period. The proposed changes will affect both petitions subject to the 65,000 cap and those subject to the 20,000 cap. If USCIS determines that the cap will not be reached by the first day on which petitions may be filed for a fiscal year, it will notify all the registrants. They would then have at least sixty days to file their petitions. If USCIS determines that the cap will be reached, it will close registration, randomly select the number of registrants that it anticipates will fit under the cap, notify others that they are on a waiting list, and notify all others that they were not selected.

USCIS anticipates that the new process will reduce costs of preparing petitions that may end up not fitting under the cap. It also will reduce the burden on the service centers that process H-1B petitions. The rule will not take effect for the 2011 process; the earliest possible date would be for 2012.

The proposed rule is reprinted at Appendix A. Comments must be submitted by May 2, 2011.

For a more detailed description of the proposal, see Jennifer Hermansky’s blog post USCIS Announces Proposed H-1B Electronic Registration System, on the LexisNexis Emerging Issues Center’s Focus on Immigration.

DHS Rule on Failure to File G-28

In March 2010, DHS finalized a rule on professional conduct. Under that rule, a practitioner who consistently violates the requirement to file a Form G-28 when he or she engages in practice in immigration matters before DHS may be subject to disciplinary sanctions under 8 C.F.R. §292.3.

DHS has learned that many pro bono practitioners are concerned about the possible sanction, especially with respect to services rendered at group assistance events. Many practitioners have chosen not to provide pro bono services in light of the DHS rule.

USCIS has now announced that, until further notice, DHS Disciplinary Counsel does not intend to initiate disciplinary proceedings against practitioners, both attorneys and accredited representatives, based solely on the failure to submit a Form G-28 in relation to pro bono services provided at group assistance events.


USCIS Revised Form I-129, Petition for a Nonimmigrant Worker, became effective on December 23, 2010, but due to a large number of inquiries regarding Part 6 of the form, “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States,” USCIS advised petitioners that they would not be required to complete this section until February 20, 2011. USCIS reminds all petitioners that petitions now must have part 6 completed.

BIA — Attorney General Eric Holder appointed Michael J. Creppy to the BIA in February. Creppy had been EOIR’s chief administrative hearing officer since April 2006. From May 1994 to April 2006, he was chief immigration judge.  Prior to joining EOIR, he worked in various capacities for the then Immigration and Naturalization Service. He has received a B.A. from Fisk University, a J.D. from Howard University, and an LL.M from Georgetown University. He is member of the District of Columbia Bar.

[This is an excerpt from the March 15, 2011, issue of Bender’s Immigration Bulletin.]

 Bender’s Immigration Bulletin

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