NFAP

H-1b Denial Rates Soar

Recent data released by the USCIS shows that the denial rate for H-1b petitions exceeded 30% in the 1st Q of FY 2019. Stuart Anderson, Executive Director for NFAP recently published an article in Forbes which goes into detail and provides a historical comparison. The article could’ve been titled, “Real data calls BS on USCIS claims” Employers, H-1b workers, and immigration attorneys have been shouting that the USCIS has been issuing arbitrary denials with no legal basis and now this data serves to back up the anecdotal evidence. Armed with this data, we are hopeful that more employers may be willing to pursue litigation in Federal Court over H-1b denials. As the USCIS continues to rack up defeat after defeat and is forced to issue H-1b approvals and pay the attorney fees and cost of litigation to the wrongfully denied under the Equal Access to Justice Act (EAJA), maybe someone high up in this Administration will decide it is better to follow the law instead of wasting taxpayer money and driving U.S. jobs and legal taxpayers overseas. Nah, probably not, instead, they are probably sitting around now trying to come up with a way to dispute their own data.

H-1b Data Released

The NFAP has published a study on H-1b usage. One of the more interesting finds is that sponsorship of new H-1b petitions by the traditional Indian off-shore houses has fallen. The assumption is that this is the result of the roadblocks designed to make it more difficult for staffing/consulting companies to place H-1b workers at 3rd party sites that started with the 2010 Neufeld memo and has been on steroids since the current Administration took control. This is a reasonable interpretation but, what is a more interesting question is whether or not these large Indian outsourcing houses have been able to use these roadblocks to their advantage to encourage more projects to be moved overseas and, if so, these roadblocks have ultimately served to decrease the number of US jobs and increase the number of outsourced projects. Unintended consequences can often be quite the bitch.

Denied a Visa because of the color of your skin ?

It seems like an absurd headline doesn’t it ? We are in 2015 in what we claim is one of the most enlightened countries in the world and this current administration certainly talks a good game about equality, transparency and fair treatment for all. The reality is far different at the USCIS. In a not so surprising discovery, the National Foundation for American Policy, released a report that disclosed that if you happen to be an Indian national that your odds of being denied an L-1 visa are 5 times greater than if you were from another country. From 2012-2014, the USCIS denied an astounding 56% of L-1b petitions for persons from India. Is there an explanation other than blatant discrimination ? Sure there is but, not a credible one. USCIS examiners at the urging of powerful political interests have linked outsourcing (which is the devil incarnate) to the L-1b visa and USCIS examiners have been doing their “patriotic duty” by denying as many L-1b visas as they can. The legal standard and meritorious nature of the case be damned. The economic impact to US business is irrelevant. The argument that denials actually eliminate US jobs and force greater outsourcing, often forcing US citizens and residents to be transferred overseas falls on deaf ears. When you don’t want to hear that a certain class of person should be treated fairly, there is no reason to listen. Deny! Deny! Deny! is the rally cry in the halls of the Vermont and California Service Centers ! In 2006, the denial rate for L-1b petitions was 6%; in 2014, it was 35% without a single regulatory or statutory change. It’s time to call it what it is ! Disparate treatment of one petition over another simply by virtue of one’s national origin.

NFAP Report Challenges Senate on Proposed H-1b Restrictions

In a report released earlier this week, the NFAP claimed that the Senate’s proposals to restrict the usage of H-1b’s were not based on sound evidence and represented poor economic policy. This report was issued before Sen. Grassley and others introduced amendments which would create even further restrictions on the H-1b. Whether or not the Senate will allow uncontroverted facts and sound economic policy to get in the way of imposing restrictionist policies is yet to be seen.

Denial rates of H-1b and L petitions skyrocket

Don’t believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP,  provides facts (those are statements that are true and not inventions of one’s mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years.  While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer.  The facts don’t lie, even if they don’t play well in the heartland.

Immigrants help drive job growth !

In spite of claims by protectionists (read Senator Grassley), the facts support a claim that immigrants contribute in a major way to US job growth. The NFAP released a recent study touting said facts. Now if only my copy to Senator Grassley’s staff would be read instead of being used as litter box filler, maybe we could see some rational pro business, pro job growth immigration bills get  fair  consideration.

Why was the H-1b cap reached so early this year ?

Many people are wondering what caused the H-1b cap to be reached so much more quickly this year. Information that the cap would be met in November, two and a half months earlier than past years, caused many employers to scramble to submit petitions. At the Hammond Law Group, we believe that there are several reasons why the cap was reached at an earlier date. Perhaps most obviously, IT industry groups, such as TechServe Alliance, have noted consistent increases in hiring throughout this year. As a result, many IT organizations submitted an increased number of H-1b petitions this year for foreign workers who they hoped would fill these positions. In addition, the U.S. Consulates in India are denying a large amount of the L-1 visas. By decreasing the amount of L-1 visas available to Indian personnel, many organizations have resorted to using the H-1b visa to ensure that their personnel are able to enter the United States and work. Finally, Department of Homeland Security Secretary Napolitano and U.S. Citizenship and Immigration Services Director Mayorkas announced on August 2, 2011 that foreign entrepreneurs could use non-immigrant and immigrant visas to obtain status in the United States. It is possible that a number of H-1b visas were absorbed by foreign entrepreneurs. While all of these reasons likely contributed to the quick rate at which the H-1b visas were used up, we believe that the high rate of denials of the L-1 visa at U.S. Consulates in India and the increased hiring occurring in the IT industry caused the cap to be reached at an earlier date.

NFAP Data Should Draw Ire from the Obama Administration

Recently the NFAP released a report based upon data received from the Department of State that showed visa approvals for multi-national cos. from India had declined in 2011 by almost 30% while during the same time-frame, the approvals for non-Indian based cos. had risen by over 15%.  At a time when the U.S. economy needs job growth and a larger tax base and President Obama is regularly promoting the need for our immigration policies to encourage international commerce and entrepreneurs, it is most unfortunate that the US Consulates in India have chosen to ignore the directives of President Obama and instead apply policies that require Indian owned cos. to go above and beyond the requirements imposed under exisitng law and legal precedent and essentially meet “super-tests” to achieve approvals. One could charge racism and discrimination or the advancement of isolationism but, frankly, I’m of the opinion that the real issue is a culture that is pervasive  at the US Consulates and the USCIS Service Centers which permit officers to modify their roles from adjudicators into policy-makers and as a result, they have elevated their own policies and prejudices over that of the positions of President Obama, USCIS Director Mayorkas, and Sec. of State Clinton, and to anyone who cares about the rule of law, even more importantly, over the laws enacted by Congress and the case precedents established by Federal Courts. Unfortunately, the notion that government agencies should follow the law is a foreign concept today to the detriment of the US economy.

November Visa Bulletin Released !

This week, the DOS released the November Visa Bulletin and the dates jumped once again for EB2 India and Chinese nationals but, remained painstakingly slow for all others. The National Foundation for American Policy recently released a study in which it calculated that the wait in the EB3 category had reached 70 years for Indian and Chinese nationals.  Yes, that says 70 !

White House Urged to Reform Skilled Visa Policies

Coinciding with the release of a study conducted by the National Foundation for American Policy, a group of US business leaders met with President Obama and urged him to reform the skilled visa system through the utilization of policy reforms. Though President Obama consistently talks about government getting out of the way of private business, his policy-makers at the USCIS have been acting in just the opposite manner.  The USCIS through the use of  policy memos such as the January 2010 Neufeld memo have engaged in a systematic campaign to thwart the growth of US businesses that utilize foreign workers. Specific policies have been directed at entrepreneurs and small and medium sized businesses who often drive employment growth especially in recessionary times. It is hoped that President Obama will turn some of his talk into action. The Huffington Post has published a summary of some of the proposals that were discussed during the meeting. Check it out and forward it to your friends and your Congressional reps because although there is much that President Obama could do, significant changes will likely require legislation.