Immigration Authorities Have Allegedly Undercounted H-1B Visas Since 2008

December 20, 2012

Young_US_diplomat_informs_University_students_in_Montreal_how_to_apply_for_US_visas.jpgU.S. Citizenship and Immigration Services (USCIS) has allegedly undercounted the number of H-1B visa petitions it has approved during the past five years, according to several immigration advocates. Documents obtained through a Freedom of Information Act (FOIA) request showed that, since fiscal year 2008, the agency has approved about 45,000 fewer H-1B visas than the maximum amount allowed by law. H-1B visas allow employers to hire highly-skilled workers for positions where no qualified U.S. citizen or permanent resident is available. Various delays and roadblocks in the application process already make H-1Bs difficult to obtain. A possible undercount by the government presents even greater difficulties for employers.

Foreign workers in "specialty occupations" may obtain H-1B visas to come to the U.S. temporarily to work in a specific job. Occupations that require a worker to apply "a body of highly specialized knowledge," both "theoretical[ly] and practical[ly]," may qualify for a visa. 8 U.S.C. § 1184(i)(1). Employers who wish to hire a foreign worker may petition USCIS for an H-1B visa. They must obtain Department of Labor certification for the position indicating that no qualified U.S. citizen or permanent resident worker can fill the job. Federal law limits the total number of H-1B visas that USCIS may issue per year, not including exempt petitions involving advanced degrees, to 65,000. 8 U.S.C. § 1184(g)(1), 8 C.F.R. § 214.2(h)(8)(i)(A)(4).

According to an analysis of documents released by USCIS, the agency has undercounted H-1B visas over the past five years by more than 45,000. Immigration blogger Greg Siskind alleges that USCIS has miscalculated the H-1B cap, leading to an undercount of almost fifteen percent. The upper limit set by statute would have allowed USCIS to issue 325,000 H-1B visas for the period from fiscal year 2008 through 2012. During that time, according to the FOIA documents, it approved 288,383. When the 8,988 applications it classified as "withdrawals" are deducted from the number of approvals, the total amount is 45,605 lower than the maximum allowed by law.

Every year, USCIS sets a date after which it refuses to accept further H-1B petitions for the coming fiscal year. It determines this date based on its estimate of when it has received enough petitions to allow it to meet the cap. The application period during which USCIS will accept petitions for a given fiscal year vary widely in length. According to the FOIA documents, the application period for fiscal year 2012 lasted almost eight months, while the corresponding period for 2011 was nearly ten months. The cut-off date for fiscal year 2013 was June 11, 2012. Any petitions received by USCIS after that date for employment beginning in fiscal year 2013, it said, would be rejected outright. The alleged undercount numbers would suggest that USCIS has denied potentially valid petitions based solely on its own projections of when it would hit the H-1B cap. Those projections may be considerably inaccurate. For businesses that rely on attracting talent through the H-1B program, this can be a substantial burden.

Immigration attorney Samuel C. Berger, P.C. helps immigrants seeking visas to work for, or invest in, a New York or New Jersey business, and helps businesses petition for skilled immigrant employees. To schedule a consultation with one of our attorneys today, contact us online or at (212) 380-8117.

More Blog Posts:

Federal Appeals Court Strikes Down New York State Law Preventing H-1B Visa Holders and Temporary Workers From Obtaining Pharmacy Licenses, New York & New Jersey Immigration Lawyer Blog, October 5, 2012

U.S. Senate Passes Extension of EB-5 Investor Visa Pilot Program, New York & New Jersey Immigration Lawyer Blog, September 7, 2012

Almost Half of the Applications for H1-B Visas are from Computer Companies; New York Leads the Demand for Skilled Immigrants, New York & New Jersey Immigration Lawyer Blog, July 19, 2012

Photo credit: 'Young US diplomat informs University students in Montreal how to apply for US visas' by US Mission Canada [CC-BY-2.0], via Wikimedia Commons.