WASHINGTON - For what may by the first time, the number of H-1B petitions withdrawn by applicants or rejected by U.S. authorities is exceeding the number of new petitions for the visas.
The numbers have resulted in a slight decrease over the past two months in the H-1B visa petition count on the scale of a rounding error. The drop may be little more than a short-term phenomenon, but it is inviting theories as to its cause, ranging from increased U.S. scrutiny of the H-1B petitions to the general economy.
The U.S. has received approximately 44,900 visa petitions toward its 65,000 H-1B visa cap, one of two caps, since it began accepting petitions on April 1. But the number of visa petitions reported in mid-May by the U.S. Citizenship and Immigration Service (USCIS) was 45,500 visas. There has been a net decline of 600 visa petitions from May to June.
A USCIS spokesman, in an e-mail, said the reason for the decline is that the number of denials, withdrawals of applications and revocations are "quite simply" exceeding the number of new filings. The U.S. has a second H-1B cap of 20,000 set aside for graduates from U.S. universities with advanced degrees. In raw numbers, that cap number has been reached.
In sum, the U.S. has received 65,000 H-1B petitions since April 1 for 85,000 available visas for the fiscal that begins Oct. 1. The combined cap may well be reached in the months ahead, but for now, demand has flatlined.
In the past year, the USCIS has increased the requirement for a wide range of documents to support visa applications to the point that the American Immigration Lawyers Association (AILA) says the requirement is "bordering on harassment."
The small H-1B decline reported by the USCIS may well be nothing more than a counting error, but Vic Goel, an immigration attorney in Reston Va., said it has more to do with cases being denied or withdrawn.
Goel said he has had clients withdraw pending H-1B cases because they couldn't get the large amount of material sought by authorities in time to meet government deadlines, or because the USCIS was seeking new documentation. In the later instance, USCIS officials have asked IT consulting firms to obtain letters from clients with detailed descriptions of the duties performed by H-1B workers, their salaries, hours, benefits, and the length of the assignment, among other things, which has not been a normal business practice, he said.
"Not many companies are going to give such a letter to a vendor without serious reservations, which could jeopardize the business relationship," Goel said.
Here's how it works: The IT consulting firm, the vendor, submits H-1B petitions to USCIS for employees who, in some cases, will work at customer sites. The vendor oversees the H-1B employees and determines their work, benefits and pay. The USCIS, however, has been asking that the vendor's customer submit a letter about the work, pay and benefits of the H-1B worker. The vendor's customer may be unwilling to write that letter for the USCIS because the H-1B worker isn't their employee. The USCIS will often deny such cases "by concluding that the H-1B employer has not proven that a job actually exists or that it will really direct and control its own worker," he said. Denials have also been issued H-1B visa extensions on these grounds, Goel said.
The reason the USCIS is demanding more from clients may rest with a report last fall by USCIS investigators that looked at 246 visa cases and found that about 20% had evidence of fraud or technical violations. The majority of violations were found with small firms of less than 25 employees.
Among the problems the USCIS reported were workers who weren't paid the prevailing wage or who were "benched" without pay when there was no work. That report was followed earlier this year by a U.S. Justice Department action that charged a number of companies with H-1B visa-related violations. Those violations included citing the prevailing wage of a lower-paying region but assigning the worker to perform the job in a higher wage region.
Robert Deasy, director, liaison and information for the AILA, said the economy has major role in the stalled demand for H-1Bs. "Ultimately, I think it's economy driven," he said. Deasy, however, said he's not ruling out a USCIS role in the visa decline through its aggressive actions and "extraordinarily rigorous" demands for documentation that are leading to visa denials and withdrawals.