USCIS SYSTEMATICALLY UNDERCOUNTING H-1B CAP USAGE

News from Greg Siskind: 

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 They also are supposed to add withdrawn H-1Bs back to the total.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 But their data shows only 55,706 applications were approved and 1,820 cases were withdrawn.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.

(follow this link): http://www.docstoc.com/docs/130551432/H-1B-FOIA

SCHUMER PROPSES 55,000 MORE VISAS FOR STEM GRADS

New York Senator Charles Schumer is releasing information about a bill he plans to introduce before the Senate tomorrow. The bill calls for the creation of a two-year pilot program that would allow 55,000 additional green cards each year for foreign-born graduates with master's degrees or higher from American universities in science, math, technology or engineering (STEM) fields. This would be wonderful.
This bill is substantially similar to the one introduced by Texas Representative Lamar Smith in the House except that Smith's bill would eliminate the Diversity Visa (DV) Lottery altogether.
Schumer's office has reportedly already been reaching out to businesses in the high-tech community to rally support for his measure. Of course, it remains to be seen whether either Mr. Schumer's bill or Mr. Smith's will ever even be voted upon, as there is very limited time remaining in this session of Congress; perhaps both of these bills are just political maneuvers, attempting to cull additional business support before the election without intending to provide any real change.
Good news, let's see the language and whether this gets voted on.

SEATTLE TECH COMMUNITY CALLS FOR H-1B VISA REFORM

Many Seattle-area businesses, most of which are technology giants, immigration reform is a critical issue that may make or break their businesses. Last Friday morning they discussed immigration reform at an event hosted by the Seattle Metropolitan Chamber of Commerce, where USCIS Director, Alejandro Mayorkas, was the keynote speaker.
Technology companies in the Seattle area, such as Microsoft, Amazon and Expedia, use some of the highest numbers of H-1B Visas in the country, most of which are given to computer/tech related occupations and industries. With the low amount of visas that are allowed to be given each year under the Congressional cap, technology companies are struggling to recruit and hire necessary workers.
Mayorkas admitted that his department struggles to understand the business community's needs when it comes to issuing H-1B Visas and other immigration issues. This is an understatement.
Mayorkas said that “The way we interact with the business community needs to change,” that there is no direct way to communicate with the business community, and as of now, the only line of communication between the government and businesses is through lawyers filing requests for evidence. Well, the vast majority of these requests for additional evidence coming from the agency are unnecessary and unduly burdensome. Some of these are outright outrageous asking companies to prove anything and include any document. Opening up to businesses means training officers and going after officers who abuse the system and really limiting the use of the RFE (requests for additional evidence) that ask for specific, relevant and limited information when absolutely necessary, not just to satisfy a whim of an examiner.

IMMIGRANTS FOUNDED 28% OF NEW BUSINESSES IN 2011

A new report issued this week by the Partnership for a New America Economy states that immigrants started 28 percent of all new businesses in the U.S. in 2011, which is a very impressive number considering immigrants are less than 13% of the U.S. population, so immigrants are twice as likely to be entrepreneurs than American born.
The report is based on the Census Bureau data. Business start-up rate among immigrants has jumped 50 percent since 1996 while the start-up rate for native-born Americans, declined by 10 percent during the same period.
The report recommends that if we want the U.S. economy to recoup, pass immigration reform so that more immigrants can start new businesses. This is what we have been telling everyone for years.
The report was authored by Robert Fairlie, an economics professor at the University of California, Santa Cruz. It found that immigrant-founded businesses tended to be smaller than other businesses, but collectively they post more than $775 billion in revenue and employ one out of every 10 workers at privately owned companies.
I agree. Immigration reform is sorely needed and we need an immediate fix to the legal immigration crisis we are facing, shortage of H-1B and immigrant visa numbers and Congress is still doing nothing in the name of protecting the American worker. This just causes outsourcing of these jobs outside the U.S.
The report is available here: http://www.renewoureconomy.org/index.php?q=open-for-business

HIGH DEMAND FOR H-1B WORKERS IN METROPOLITAN AREAS

Another story broke recently in the news reiterating the fact that American businesses cannot fill some jobs fast enough and there are not enough qualified employees out there. Most of these jobs include highly paid positions in science, including computer science, engineering and healthcare.
Most of the demand is in metropolitan areas that are mostly populated, such as the tri-state area around New York, New Jersey and Pennsylvania who have the greatest need for the highly skilled H-1B visa workers.
According to this new report, called 'The Search for Skills: Demanding for H-1B Immigrant Workers in U.S. Metropolitan Areas', by the Brookings Institute, the bulk of the demand for H-1B workers, from the Northeast U.S., accounts for 16.3 percent of all H-1B visas issued. The top four metropolitan areas, each with between 14,000 to 18,000 H-1B visa worker requests, are Los Angeles, San Francisco, San Jose, California, and the greater Washington, D.C., area.
The report recommends key policy changes, such as creating an independent commission that can recommend timely changes to immigration policy to respond more quickly to high-demand job markets (to possibly increase the cap), target H-1B visa fees to geographical areas to upgrade the skills of the existing workforce, especially where needed.
The report is available at: http://www.brookings.edu/research/reports/2012/07/18-h1b-visas-labor-immigration#overview Congress really needs to put its act together and increase the quota. It is really hurting businesses and individuals alike.

DOL PROPOSES FAR-REACHING LCA CHANGES

Long gone are the days when the Labor Condition Application (LCA) certification was done immediately. Three years ago the U.S. Department of Labor (DOL) moved into the iCert portal for LCA filings and each application must be manually reviewed prior to certification by a DOL officer. This change increased the official LCA processing time from a few seconds to 7 business days.
Now DOL is proposing yet additional changes. In its desire to improve the integrity review and ensure accuracy and completeness of the information, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the non-immigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit U.S. workers; and requiring the employer to list the address where the employee’s public access file is kept.
While the change in regulations is a process that can take several months, the changes must be approved by the federal Office of Management and Budget (OMB) before they can be implemented. Some of the changes are even more significant, including a proposal to identify the intended beneficiaries on the LCA. Currently the LCA does not require any information identifying the intended beneficiaries of the H-1B petition. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed on the LCA.
In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.
While the DOL has some valid points, its rules may violate privacy issues. Since the LCA are available for public inspection, the beneficiaries have rights to privacy and identity information. In addition, employers now may use a certified LCA to file an H-1B petition for a new employee if the existing LCA was not used for someone else or a part of a withdrawn H-1B. This will be more cumbersome for employers who may want to use existing LCAs. Because of the lag time from filing to certifying the LCAs, employers routinely file LCAs in advance of transferring a particular employee over in order to save precious time. If this change is accepted this will not be possible any longer.
As to the requirement to list the PERM application numbers, what happens in a case where the employer is not aware of a prior PERM filing for the same employee by another employer? The new DOL rule proposes to limit the number of workers to 10 per LCA versus the current practice where a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions. This again will create burdens on larger employers.
The DOL's proposed changes include significant additional detail on the worksite. Currently the LCA form requires to identify the place of intended employment (address and county). However, under the new rules the employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.
In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems especially on employees who travel between different worksites or when the final worksite is not known in advance of filing. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA because the LCA wage is valid for the entire area of intended employment (usually the metropolitan area). 
DOL is already targeting and scrutinizing PERM cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. DOL adds these requirements to verify the bona fides of the offer of employment. But how does that help? 
So, while USCIS on one hand helps employers' flexibility (for example on March 12, 2012, they issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition), the DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for U.S. companies to be able to compete in the global marketplace.

FOREIGN INVENTORS DOMINATE PATENTS AWARDED TO TOP RESEARCH UNIVERSITIES

From the business journal in Washington DC, more proof to what we have been saying all along that the H-1B visa cap needs to be thrown out the windows and additional options for foreign-born entrepreneurs:

More than 76 percent of the patents awarded to the nation’s top 10 research universities last year had a foreign-born scientist listed as an inventor. That’s according to the Partnership for a New American Economy, which analyzed 1,500 patents awarded in 2011 to the top 10 patent-producing universities in the U.S. The organization, which is composed of mayors and business leaders, contends this finding demonstrates the need to reform our immigration policies to allow more of these foreign-born inventors to remain in the United States. Many of these inventors may end up leaving the country under current policies. The study found that 54 percent of the patents studied included foreign-born inventors who were students, post-doctoral researchers or staff researchers who were not professors. These foreign researchers are the “most likely to face major hurdles obtaining the visas needed to settle permanently in the United States,” according to the partnership. University research is important because it helps the U.S. stay ahead in the fields of science, technology, engineering and mathematics (STEM). Universities receive one in six of all patents for molecular biology and microbiology, for example. Academic research institutions own more than one-third of patents in genetics. The partnership contends Congress should help the U.S. keep its research edge by passing legislation to: • Grant permanent residency -- green cards -- to foreign students who earn graduate degrees in STEM fields; • Create a Startup Visa for foreign-born entrepreneurs who want to start companies in the U.S.; and • Remove or at least raise the current cap of 65,000 H-1B visas, which are awarded to highly skilled foreigners who work in the U.S. These recommendations were seconded in a letter sent to the White House and Congress today by more than 80 university presidents. “If U.S. political leaders don’t reform the country’s broken immigration system soon, they risk jeopardizing one of the country’s biggest assets -- our ability to leverage our pre-eminent universities to attract talented foreigners and make them part of the great American success story,” the partnership’s report concludes.

The article is available at: http://www.bizjournals.com/bizjournals/washingtonbureau/2012/06/26/foreign-inventors-dominate-patents.html?ana=e_abd&page=all

The report is available at: http://www.renewoureconomy.org/