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H-1B Visas Approved at Increased Rates, Requests for Evidence Decreasing

January 6, 2011

Dawn Could it be that the worst is behind us? Columbus immigration lawyers are seeing a recent increase in H-1B increase in H-1B visa approvals and a decrease in requests for evidence notices issued in third party placement situations. While it may just be a coincidence that a few H-1B visa applications have not been approved without the draconian requirements imposed by USCIS adjudicators in requesting mounds of additional documentation last year, it is a rare occurrence for the USCIS to apply one standard to one petition and another, more rigorous standard to another petition. Assuming that the USCIS has decreased its unreasonable demands, below are a few explanations that come immediately to mind for this sudden change.

The USCIS is a Self-Funded Agency

The USCIS is almost entirely self sufficient in its funding. The fees that are paid with visa petitions, including H-1B petitions, fund the USCIS operations. This year we have witnessed a drastic drop in demand for employment based H-1B visas. In fact, last year’s H-1B visa cap of 65,000 visas has not yet been reached. If the USCIS does not receive as many visa applications, it does not make as much income. With the profit motive in mind, it is easy to assume that there is a profit motive behind a decrease in unreasonable demands by the USCIS.

The USCIS and Department of Labor Have Increased its Screening and Enforcement Actions Against Employers who try to Take Advantage of the System

Last year, the USCIS and Department of Labor instituted a system for tracking screening out fictitious employers by requiring all H-1B petitioning employers prove their existence through the I-Cert system. Only employers with a valid FEIN, Federal tax identification number are permitted to submit H-1B applications. This means that only real, tax-paying companies may file for H-1B visas. Introducing a more stringent requirement on the front end of H-1B visa applications may have resulted in the decrease in need for the USCIS to harass a business on the back end of the petition process.

There have also been increases in LCA enforcement activities by the Department of Labor (DOL) whereby the DOL will visit a petitioning employer’s place of business to ensure that wage and hour attestations made in the H-1B visa petition are being carried out in reality. I would not surprise me if such visits became an even more common occurrence. Keeping this in mind, businesses and attorneys should pay more attention to public inspection files and documentation of working conditions and wages that could be trouble if the DOL conducts a search of business records.

New I-129 Forms Have Reduced the Need for Ancillary Documentation

As of December 23, 2010, H-1B visas are to be filed on new versions of the I-129 immigration form. The new I-129 forms require disclosure of third party placement and other significant attestations that were not made in previous versions of the form I-129. Perhaps these forms have helped the USCIS streamline the adjudication process.

Greater Sharing of Information across the USCIS Intranet The USCIS has also increased its efforts to unify the information available across its many different databases into a format that is easily searchable for immigration officers. Perhaps the officers can now answer their own questions about a petitioning company or alien by accessing USCIS files and discovering that an issue had been addressed in a previous H-1B petition or case involving the same party or parties.

The Possible Dawn of a New Day

While it is too soon to be certain, we may be experiencing the dawn of a new period in H-1B adjudication where the facts of each case are judged fairly and efficiently, without undue harassment or visa denial and the accompanying uprooting of tax-paying, college educated aliens who have been living productive lives in the United States for years with their families. Or maybe the USCIS was feeling the holiday spirit as of late. Either way, the apparent ease on the requirements of unnecessary documentation is a welcome relief for the good businesses and good people who utilize the H-1B visa.

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