Records obtained from U.S. Citizenship and Immigration Services (USCIS) through a Freedom of Information Act (FOIA) request allegedly show that the agency has issued far fewer H-1B visas than the maximum allowed number for the fiscal years 2008 through 2012. USCIS apparently has not responded to requests for an explanation of the discrepancy between the numbers. Since H-1B visas are a crucial mechanism for employers to obtain highly skilled workers who are not available from within the American workforce, this is very concerning news for the business community.
The H-1B visa is available to workers in “specialty occupations,” defined as fields requiring at least a bachelor’s degree and the “theoretical and practical” use of “highly specialized knowledge.” 8 U.S.C. § 1184(i)(1). Visa holders may reside temporarily in the United States for the purpose of a particular job. Employers petitioning for a visa for an employee must obtain certification from the Department of Labor (DOL) stating that no qualified person already in the United States is available for the position. The immigration code and federal regulations state that the total number of H-1B visas issued during a particular fiscal year may not exceed 65,000. 8 U.S.C. § 1184(g)(1), 8 C.F.R. § 214.2(h)(8)(i)(A)(4).
Alleged Undercounting, 2008-12
According to a report by immigration blogger Greg Siskind, USCIS has undercounted H-1B visas by about fifteen percent during the past five fiscal years. The total number of H-1B visas the agency could have issued during this period is 325,000. This does not include the H-1B visa petitions for advanced degrees that were not subject to the annual 65,000 numerical cap. From fiscal year 2008 through 2012, USCIS reportedly approved 288,383 H-1B petitions. It listed 8,988 petitions as “withdrawn” during that period. The total number of approved petitions, minus the number of withdrawals, falls short of the maximum allowable number by 45,605.
Closing the H-1B Application Period
USCIS announced that it reached the cap for fiscal year 2013 on June 11, 2012. It stated that it would reject any petitions subject to the numerical cap received after that date. The application periods for a fiscal year can vary widely. According to USCIS’s response to the FOIA request, the application period for fiscal year 2012 was just under eight months, lasting from April 1 to November 22, 2011. The period for fiscal year 2011 was longer, lasting almost ten months, from April 1, 2010 to January 26, 2011. For fiscal year 2009, the information provided by USCIS states that the application period lasted seven days, from April 1 to 8, 2008.
Siskind’s analysis of the FOIA information states that USCIS is required to issue 65,000 H-1B visas per year. This may be overstating the law, which sets a maximum number of 65,000 per year and 20,000 for advanced-degree holders. Regardless, the information provided would suggest that USCIS is not issuing as many visas as it could or should. The closing of the application period, combined with the rejection of applications filed outside of that period regardless of the actual number issued, suggest that USCIS is not making accurate projections of approvals, rejections, and withdrawals. Businesses who rely on foreign workers for particular specialty occupation positions are among the hardest-hit by these errors.
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
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