Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials
Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013. The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.
The H-1B program is used by U.S. corporation to employ foreign professional workers in occupations that require theoretical or technical expertise in specialized fields. The program allows for about 85,000 new H-1B workers each Fiscal Year, a paltry number in the face of the U.S.’s need for Science, Technology, Engineering and Mathematics (“STEM”) workers. In an interview with Reuters last year, I predicted that 2013′s H-1B quota would be exhausted instantly – something that had not occurred since 2008. I was subsequently proven correct as USCIS received approximately 124,000 H-1B petitions during the filing period, each vying for one of the 85,000 “slots” available. On April 7, 2013, USCIS used a computer-generated random selection process (the “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
This year, the Fiscal Year 2015 Cap season will begin on April 1, 2014 and I anticipate an even larger number of H-1B applications. This prediction is based not only on the strengthening national economy but also because U.S. Immigration authorities have reduced or eliminated other possible options for U.S. companies in acquiring STEM professional workers. Despite the tremendously positive impact that H-1B visa holders make in this country (including the substantial revenue the hefty H-1B application fees generate for USCIS and U.S. worker training programs nationwide), they are treated poorly by U.S. Immigration authorities. H-1B employers and beneficiaries suffer from absurdly high query rates and illogical consular delays. Many also subject to unusually long delays in filing for Permanent Residence, for example, an Indian born Software Engineer currently faces a wait time of eleven (11) years to obtain an employment based third preference (EB-3) green card.
As I have previously stated, our national immigration policy should emphasize our immediate need: to retain and increase our advanced degree professionals so that the we can continue to compete internationally and maintain our lead in new technologies. One of the best ways to accomplish this is to take concrete steps towards increasing the H-1B cap amount to 250,000.
Infosys Fined an Unprecedented $35,000,000.00 by the U.S. Government for Employing B-1 Visas in Lieu of H-1Bs
The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.
By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.
In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:
“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”
(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be
However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.
Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law. It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.
USCIS will remain operational during the Federal Government Shutdown thanks to the healthy funding it derives from USCIS filing fees
- Good news: USCIS’ operations though the Federal Government Shutdown are expected to continue because it is funded by sources other than appropriated funds (read: H-1B and other USCIS filing fees). In fact, this funding is so substantial that USCIS expects to send home only 353 of 12,558 employees during the temporary shutdown.
- Consulates remain operational at this point.
- Unfortunately, the DOL ETA will not process any employment based labor certifications during the shut down. The PERM PLC website is also down, as is iCert.
Update: the iCERT system is currently unavailable due to Federal Government Shutdown. It Appears that No LCA’s or Prevailing Wages Can be filed.
By Ashwin Sharma, Esq.
Update: our law office tried to file an ETA 9035/LCA a few moments ago and received the following message:
The iCERT system is currently unavailable
This Web application is currently unavailable due to the suspension of Federal government services. It will be available again when the Federal government resumes operations.
- Federal government shuts down (huffingtonpost.com)
- The Republicans Must Aggressively Seek Credit For The Federal Government Shutdown (forbes.com)
TITLE IV OF THE SENATE’S S.744 IMMIGRATION REFORM BILL – RELATING TO CHANGES IN H-1B, L-1, E-2 NONIMMIGRANT VISAS
TITLE IV–REFORMS TO NONIMMIGRANT VISA PROGRAMS
Subtitle A–Employment-based Nonimmigrant Visas
SEC. 4101. MARKET-BASED H-1B VISA LIMITS.
(a) In General- Section 214(g) (8 U.S.C. 1184(g)) is amended–
(1) in paragraph (1)–
(A) in the matter preceding subparagraph (A), by striking `(beginning with fiscal year 1992)’; and
(B) by amending subparagraph (A) to read as follows:
`(A) under section 101(a)(15)(H)(i)(b) may not exceed the sum of–
`(i) the base allocation calculated under paragraph (9)(A); and
`(ii) the allocation adjustment calculated under paragraph (9)(B); and’;
(2) by redesignating paragraph (10) as subparagraph (D) of paragraph (9);
(3) by redesignating paragraph (9) as paragraph (10); and
(4) by inserting after paragraph (8) the following:
`(9)(A) Except as provided in subparagraph (C), the base allocation of nonimmigrant visas under section 101(a)(15)(H)(i)(b) for each fiscal year shall be equal to–
`(i) the sum of–
`(I) the base allocation for the most recently completed fiscal year; and
`(II) the allocation adjustment under subparagraph (B) for the most recently completed fiscal year;
`(ii) if the number calculated under clause (i) is less than 115,000, 115,000; or
`(iii) if the number calculated under clause (i) is more than 180,000, 180,000.
Canada exploits U.S. neglect of its Foreign Professional (H-1B) workers by offering Special Visa option
In recent years, U.S. immigration policy has repeatedly ignored the needs of its skilled and professional non-immigrant workforce and has instead burdened them with long waits for a green card, absurdly high query rates and illogical consular delays. Nowhere is more apparent than in the case of H-1B Professional workers. An Indian born Software Engineer currently faces a wait time of eleven (11) years to obtain an employment based third preference (EB-3) green card. In comparison, the Comprehensive Immigration Reform Bill currently under negotiation in DC would provide millions of undocumented workers green cards in ten (10) years.
Just a month and a half after the U.S. turned away tens of thousands of specialized professionals (holding U.S. job offers) by refusing to increase its yearly H-1B quota levels, another nation has moved to reap the benefits of U.S. missteps.
Canada is aggressively appealing to these H-1B professional workers, even going to the extent of securing a billboard just outside Silicon Valley which reads:
“H-1B problems? Pivot to Canada. New Start-Up Visa, Low Taxes”
NBC Newswire and The Associated Press joins Reuters in reporting on possibility that the entire year’s H-1B Work Visa Quota could be exhausted in a week
NBC Newswire and The Associated Press have added to yesterday’s Reuter’s article, for which I was interviewed, reporting on the possibility that the entire year’s national quota of H-1B Professional Work Visas could be used up in as little as a week’s time. The article discusses the recent Republican led attempt to reform immigration for highly skilled workers through the failed STEM Jobs Act, and makes the point that such an obvious demand for skilled workers sends a clear signal that the U.S. economic collapse is over and that Congressional overhaul of the H-1B should be part of any Comprehensive Immigration Reform legislation. Congress would do wise to listen to the likes of more than 100 top tech leaders including Mark Zuckerberg, Bill Gates and even the late Steve Jobs, all of whom were proponents of increasing limits on Professional Work visas.
- Ashwin Sharma interviewed by Reuters on U.S. demand for skilled worker visas topping quota (ashwinsharma.com)
- US H-1B visas may be decided through lottery this year (news.in.msn.com)
- US demand for skilled worker visas seen topping quota soon (rediff.com)
Dept. of Labor indicates that “Unusually High Number of Cases Filed”: Issuing Generic LCA Certification Notices
http://www.ashwinsharma.com, VIA AILA.org
More indications of the impending avalanche of H-1B cases set to be filed for the quota which opens April 1, and of the problems caused by DOL’s iCERT website. According to AILA, The U.S. Department of Labor has been sending the following e-mail to many LCA submitters: “Due to an unusually high volume of submitted cases, one or more Labor Condition Application cases you submitted recently was certified but the courtesy email informing you of the certification was not generated. Please log into the iCERT Visa Portal System to review your recently submitted cases and retrieve the certification(s).”
By Ashwin Sharma, Esq.
The latest H-1B numerical cap (FY 2014) opens on April 1, 2013. USCIS has indicated that it expects to receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between April 1, 2013, and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
This could be the first time since April 2008 that the H-1B cap will require a lottery. USCIS has also indicated that premium processing for H-1B petitions filed for the Cap will note begin until April 15, 2013, quite understandable considering they are expecting an avalanche of H-1B cases.
That we are at 2008 application levels and preparing for another H-1B lottery is testament to two major factors:
1. Information Technology consulting, and the large variety of industries supported by it, have largely rebounded since the 2008 economic crash.
2. There are not enough H-1B visas to meet demand. Increasing H-1B numbers was obviously not at the top of the priority list during the economic collapse, however, it must be addressed directly by any Comprehensive Immigration Reform program. Increasing the H-1B quota, along with the addition of a special category for IT workers, is a no-brainer – one of the simplest fixes Congress can make in both strengthening this country’s economy and status as a tech superpower.
- US to accept H1B applications from April 1 (news.in.msn.com)
Can I re-enter the U.S. with a valid I-94 and expired visa? – Automatic revalidation for certain temporary visitors
Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by Customs and Border Protection (CBP), if they meet certain requirements, including, but not limited to the following:
A nonimmigrant who departed the U.S. for brief travel to Canada, Mexico, or an adjacent islands (for F and J nonimmigrant) for thirty days or less;
Nonimmigrant who have changed their nonimmigrant status (for F and J nonimmigrant) to another nonimmigrant status through U.S. Citizenship and Immigration Services (USCIS) and has a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS can travel to Canada, Mexico or an adjacent island for thirty days or less.
Nonimmigrant who is eligible to re-enter the U.S. pursuant to the authority of automatic revalidation is not able to benefit from the automatic revalidation process if the passport of the nonimmigrant reflects evidence that while in a contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied a new visa application.
For more information about automatic revalidation provisions and reentry to the U.S. visit the Automatic Revalidation Fact Sheet on page 18 of the Carrier Information Guide on CBP.gov. Note: Carrier Information Guide is currently being updated to accurately reflect the countries listed below.
Nationals of Cuba, Iran, Sudan and Syria are not eligible for automatic revalidation of an expired visa.