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Greg Siskind on Immigration Law and Policy

BREAKING: USCIS Systematically Undercounting H-1B Cap Usage

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You're seeing this news here first. Attorney David Rubman in Chicago, Illinois has just shared with me the answer to a Freedom of Information Act request which definitively shows that USCIS has been undercounting H-1B usage by nearly 15% over the last five years. Approximately 45,000 too few H-1Bs have been approved between fiscal year 2008 and 2012. USCIS is required to approve 65,000 H-1B visas per year. They determine when the H-1B cap is hit each year based on their estimate of how many cases will be denied. They also are supposed to add withdrawn H-1Bs back to the total. USCIS has had wildly inaccurate estimates of their denial rates which has resulted in the undercounting. For example, for the current fiscal year, USCIS stopped accepting applications last January. But their data shows only 55,706 applications were approved and 1,820 cases were withdrawn. That means 11,000 more applications should have been approved.


This is an extremely serious failure on the part of USCIS and the employer community deserves an explanation. Right now, we're in a 13 month blackout with no H-1Bs available. The cap for the coming fiscal year was reached last June. USCIS more than likely has undercounted again and they need to reopen the application process. Furthermore, USCIS needs to add back cap numbers to account for the undercounting.


Here are the numbers for each of you to see. Now let us see how USCIS responds.


 



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Comments

  1. George Chell 's Avatar
    It may be sheer incompetence. I have the same issues with the labor department and their unemployment numbers!
  2. Paul Wilson's Avatar
    Well, the truth is that USCIS is a totalitarian agency without any oversight and they do whatever they want. They break the law all the time. For example, the current EB2-Worldwide retrogression and it unavailability in Q4 of 2012 is a result of another gross violation. There is no recourse and if you try to litigate, they will most likely win anyway, because the standard is whether there was "misfeasance" or not. If they can show it was not ill-intentioned, then they are off the hook.
  3. Nurse Waiting's Avatar
    Amazing. I am surprised nobody requested this before. They know democrats in congress are in power since last five years and not interested in doing anything for skilled immigration.
  4. Another Voice's Avatar
    Terrible news considering the skilled gap that exists in the US. The key question is now that this has gone public can anything be done about it? It would be nice to get this info to the President's job council....clearly these folks are not stealing anyone's job if the got the H1-B that means the employer could not find qualified Americans to do these jobs...
  5. Legal and no longer waiting's Avatar
    I wonder if anything can be done to recapture the numbers. This is just wrong.
  6. JoeF's Avatar
    "They know democrats in congress are in power since last five years"
    No, they aren't. I suggest you learn the facts instead of posting some factually wrong BS. Geez, some people make everything partisan.

  7. JoeF's Avatar
    "I wonder if anything can be done to recapture the numbers."

    Somebody would probably have to sue them.
  8. George Chell 's Avatar
    American kids cannot even read their language properly, and yet they want to make English the official language...do you really think the guys at USCIS can count?

    http://news.yahoo.com/sat-reading-scores-lowest-theyve-40-years-204658542.html

    I am pretty certain the guys in the US Labor Department cannot count...so it should not be a surprise that the guys in USCIS cannot count!
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