Disturbing statistics from the U.S. Department of Labor. The DOL has just released its PERM statistics for government Fiscal Year 2012. Year to date, (Oct. 1, 2011 – May 30, 2012), they have received 43,100 PERM applications and certified only 27,600 out of the overall number. 5,600 applications were denied and 2,100 were withdrawn. The others have been audited. So, basic math will have the approval rate at about 64% which means the denial/audit rates are increasing to 37% even while the majority of the PERMs are filed in the computer/math fields and 90% require a bachelor or a master’s degree.

The government’s fiscal year FY 2013 did not start yet but the H-1B visa Cap was reached about 3.5 months before it started. USCIS just today updated its website with the following language: On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.
New H-1B filings that are not cap-exempt will be accepted for FY2014 starting on October 1, 2014 (and presumably could be filed on April 1, 2014). This is a very long time away. Congress needs to get its act together and increase the quota on a permanent basis.

From Greg Siskind, our guest blogger: My friend David Rubman has been quietly pursuing data for months to confirm what he has long suspected – that USCIS is actually issuing far fewer than 85,000 H-1B approvals each year (65,000 for the regular cap and 20,000 for the masters cap). How is this possible? Because USCIS calculates how many H-1B applications it will accept based on estimates of the number of cases it will deny. And they appear to be way off in their estimates. H-1B denial rates have soared over the last few years, but USCIS has not seen fit to take more H-1B applications to account for the shift. And they’re also supposed to add withdrawn or revoked H-1Bs back in to the mix. USCIS ought to be reopening the application process when they err in their calculations. This year, the cap is going to be hit 15 months before the end of the fiscal year (September 30, 2013). They will have plenty of time to count and reopen the application process. But under the existing system, when they announce the cap is hit in the next few days, the process will be over until USCIS starts taking applications for the next fiscal year. The White House can’t bypass Congress to increase H-1B numbers. But they can make sure that the entire quota is actually exhausted. According to David’s calculations, as many as 20,000 H-1Bs per year have been wasted because of USCIS’ secretive process for counting H-1B numbers. USCIS likes to throw around the word “fraud” pretty loosely when it comes to how employers use the H-1B program, but wouldn’t it be ironic if it turns out that the agency has been misleading Congress and the public regarding how many H-1B approvals it is issuing? It’s about time USCIS opens up regarding how it is counting numbers and why they are not reopening the cap when it is found that additional numbers are available.

The American Immigration Lawyers Association just sent an alert as follows: Assuming that the rate of H-1B filings has remained at least constant at 1,800 per day, another 7,200 cap-subject non-master’s H-1B petitions will have been filed by the close of business today (June 7, 2012). Add that to the announced 55,600 filed as of June 1, 2012, that means that nearly 63,000 cap-subject H-1B petitions will have been filed by tonight. USCIS sets aside some (approximately 1,500 for Chile/Singapore), and accepts a number in excess of the total cap allocation of 65,000, to take into account denials and withdrawals. Some data suggests that the total number of cap-subject non-master’s H-1B petitions taken in is in the neighborhood of 70,000. All of this suggests that for planning purposes, submission of H-1B petitions for delivery to service centers by Monday, June 11, 2012, (which means getting them in the hands of couriers by Saturday for Monday delivery), may be prudent.

Less than 10,000 H-1B visas are left for FY2013. USCIS just issued another H-1B cap update. As of June 1, 2012, they have accepted approximately 55,600 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 18,700 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, with over 8,000 visas used in a week so there will probably be another week to submit the visas and then they will be gone until October 1, 2013. We are rushing to get everything filed on time for everyone.

DOL just released statistics on its PERM processing cases. As of March 2012, the rate of denied and withdrawn PERM cases was 33.6% of all cases adjudicated in March. For the current fiscal year (FY-2012) from 10/1/11-3/26/12, the rate of denied and withdrawn cases was 25%. The statistics are alarming, and this is a significant jump (of over 20%) in the denial rate of labor certifications. This is a significant change and a higher rate of denials than in the past. From FY-2008 to FY-2010, DOL approved 81.67% of labor certification applications filed according to its statistics. While the job outlook situation in the nation is still not bright, it did improve significantly from the recession and DOL will most likely be light years late to catch the trend.

USCIS just issued another H-1B cap update. As of May 25, 2012, they have accepted approximately 48,400 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 17,500 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, still at a pace of about 6,000 petitions per week but anticipated to increase as the visas are about to reach their limit. There are probably a couple of weeks left before the quota is reached and then no more visas until October 1, 2013.
Congress really needs to get its act together and increase the quota altogether. 

Some good news – earlier this week USCIS released in full the remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center on behalf of AILA (the American Immigration Lawyers Association). AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. The agency’s H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and have dramatically increased the frequency of unannounced worksite inspections, yet has kept the rules and guidelines related to the review process secret. In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. Finally, in response to the district court’s grant of partial summary judgment to AILA in March 2012, which found USCIS’s explanations for withholding the records insufficient, USCIS released in unredacted form the remaining contested documents: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet , and 3) a Compliance Review Report. A more detailed review from AILA will be forthcoming shortly but this is good news in trying to keep the agency more transparent and help us know what to anticipate.

USCIS just issued another H-1B cap update. As of May 18, 2012, they have accepted approximately 42,000 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 16,000 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, at a pace of about 6,000 petitions per week but anticipated to increase as the visas are about to reach their limit. There are probably a couple of weeks left before the quota is reached.

USCIS just published an H-1B visa cap count update. As of May 11, 2012, they have received approximately 36,700 H-1B petitions subject to the regular cap plus an additional 14,800 petitions subject to the master’s degree quota. Filings are increasing in pace from week to week, with over 4,000 visa petitions that are receipted per week. The visa usage has passed the halfway mark and filings are expected to increase on a weekly basis until the cap is exhausted. I expect the H-1B visas will be completely gone by early June 2012. And then no more visas until October 2013. This is pretty bad and Congress need to get its act together and increase the quota (nothing will happen in the current sad state of affairs in Washington D.C. but maybe something will happen after the election). People should hurry up and file now if they need to get a visa this year.