As the White House is contemplating placing a moratorium on the issuance of H-1b visas and the issuance of OPT STEM work permits, it may be helpful for the WH to check DOL data. If they do, they will learn that the unemployment rate of IT professionals, which make up a large percentage of H-1b workers and OPT STEM workers has not been impacted significantly by COVID-19. The unemployment rate for IT professionals was at 2.8% in April. It is true that 30+ million Americans are currently out of work due to the current pandemic, but, the impact on the IT space is nominal. IF the WH cares enough about the economy to actually check out the facts, they will drop their ill-conceived plan that attacks STEM jobs and will instead focus on other areas. For the data, check out the NFAP policy brief.
In a series of recent Federal Court decisions, rulings have been issued declaring that the USCIS at the direction of the Trump Administration have been illegally denying H-1b visas on grounds that have no legal or factual basis. A nice summary of these cases can be found in this recent Forbes article. The article, written by immigration policy expert, Stuart Andreson from NFAP, contains links to the actual cases if you want to read the full opinions. With Federal Court adverse decisions coming from multiple courts with a mix of Republican appointed and Democrat appointed judges and with no reversals from any Federal Appellate Court, one has to wonder at what point the USCIS gets tired of being punched in the mouth and throws in the towel and returns to actually following the law as it is written ? (maybe only Stephen Miller can answer that question ?) These cases were all brought by Heavyweight Champ Jonathan Wasden. Kudos to him and his firm. Litigators extraordinaire !
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.
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.
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.
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.
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.
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.
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.
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.