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Denial Rates for H-1B Visas Rising in U.S. Consulates in India

Bahai_Mandir,delhi.JPGIndian workers account for a huge percentage of the H-1B visas issued by the federal government every year. For American businesses petitioning to bring a worker from India here on an H-1B visa, however, the rate of rejections at U.S. consulates seems to be increasing. This can have a significant impact on businesses who rely on skilled labor from abroad, particularly technology companies. The issue has prompted Congressional hearings and a direct complaint from a high-level Indian government official in the past year. Some new initiatives from immigration officials, however, may help speed the process for Indian workers.

Indian H-1B Workers

Indian workers represent a substantial percentage of H-1B visa holders in the United States. According to statistics from the U.S. Department of State (DOS), the U.S. issued about fifty-six percent of the total H-1B visas to workers from India in fiscal year 2011, the most recent year with available data. During the prior fiscal year, DOS issued just less than half of the H-1B visas to Indian workers. These figures do not show the troubling trend, however, of excess scrutiny allegedly applied to Indian H-1B petitions by consular officials, or the rising rate of rejections of H-1B petitions originating in India.

Concerns Over Indian Business Models

According to a member of the Alliance of Business Immigration Lawyers, U.S. Citizenship and Immigration Services (USCIS) became concerned in 2010 with the business model used by Indian information technology consulting firms. These companies often place consultants in client offices, but pay the consultant as their own employee. H-1B regulations require that the sponsoring company directly employ the visa holder. USCIS reportedly became suspicious that the third-party clients were the visa holders’ actual employers, instead of the IT consulting firms that sponsored them. It is not clear whether an actual pattern of visa fraud led to this suspicion or not, but USCIS and DOS have apparently begun to subject most H-1B petitions from India to far greater scrutiny than those from other countries.

Business and International Community Concerns

A hearing held by the U.S. House of Representatives in early 2012 featured testimony that immigration officials denied twenty-six percent of the H-1B visa petitions the previous year, a rate that had increased consistently since at least 2004. Businesses were receiving far more requests for additional documentation from USCIS or DOS, and officials were denying petitions because of bureaucratic or clerical errors. In March 2012, the Indian commerce minister reportedly complained directly to the U.S. Secretary of Commerce about the high rates of denials of Indian petitions, which the minister said had reached twenty-eight percent.

New Developments

Two recent developments at DOS may help ease some of the burden resulting from the increased rejection of Indian visa petitions. In an October 2012 cable, DOS clarified its “B-1 in Lieu of H” program, which allows some visa petitioners who may qualify for an H visa to come on a B-1 visa instead. The program is set forth in the notes to Volume 9, Section 41.31 of the Foreign Affairs Manual. Additionally, the U.S. Consulate in New Delhi, India announced in November 2012 that it was expanding its Interview Waiver Program, which allows applicants to skip the interview with a consular officer, to include many H-1B petitions.

The Rant

This issue highlights many of the serious flaws in how USCIS and DOS handle H-1B petitions. The frequent errors resulting in unwarranted rejections are bad enough without the seemingly unsupported assumptions about Indian businesses. The additional scrutiny and demands for documentation places a burden on American businesses who are trying to recruit necessary talent from abroad.

Web Resources:

B-1 in Lieu of H (PDF file), State Department Cable 101466, October 5, 2012
More Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Business Immigration, ImmigRantings, May 14, 2012
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012
Photo credit: By Darshanadakane (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.