USCIS, Interpreter Releases Rally Around Shrunken H-1B Program

The once unstoppable H-1B program that used to bring more than 100,000 new temporary alien workers every year to the U.S. appears to be in trouble, and its friends are rallying around.

USCIS is currently running what looks very much like an advertisement for the program, included in the flashing photo-montage of highlights on its website, and the Grand Old Man of Immigration Law has written somberly about the program and its problems.

The program has been strongly criticized by advocates of U.S. workers who see it as a system for replacing U.S. workers with foreign ones, and for dragging down wages and working conditions for all in the process.

The symptoms of program distress are there for all to see; in the good old days when there were many more applications than slots available, USCIS used to run an H-1B lottery to see which corporate employer would hire which overseas tech worker. As noted in an earlier blog only a fraction of the annual ceiling has been filed for this year.

The early April filings, for H-1B openings in October, came to only 13,500 for the 65,000 annual new slots in the main H-1B program, and only 5,600 applications for the 20,000 additional slots set aside for foreign workers with advanced U.S. degrees. The 65,000 plus 20,000 ceilings, in turn, are a reduction from considerably higher numbers in earlier years.

It is not clear that U.S. workers are the beneficiaries of any of this reduction in H-1B usage, but what is clear that it is terrible economic news to both USCIS and to the immigration lawyers of America.

As noted in that earlier blog, the shortfall, so far of more than 42,000 H-1B applications (as compared to last year's April filings) means a thumping loss of $148 million to the agency, which is about 5 percent of its annual revenues. Since it is largely funded by fees, and fees for other benefits have also fallen (though not as sharply), USCIS is facing a real fiscal challenge.

Meanwhile, though numbers are not available, many H-1B filings are done by immigration lawyers, and they, too, are facing a major reduction in revenue, particularly those who specialize in this comfortable kind of practice, where the clients are: a) corporations, and b) outfits that pay their bills.

What to do?

Apparently shedding all claims of being a quasi-judicial agency, making decisions about immigration benefits based on the facts laid before them, USCIS' home page on the internet proclaims "H-1B (specialty occupations) Filing Cap Open."

The slideshow segment with this headline shows five happy persons, a physician, a man wearing both a hard hat and a tie, and three white collar workers. If you click on the photo it leads you to a more factual piece of copy headed "USCIS Continues to Accept FY 2011 H-1B Petitions," which describes the current state of the program but does not mention the cost of filing a petition (about $3,740 in most cases).

Meanwhile, Austin T. Fragomen, Jr., name partner of Fragomen, Del Ray, Bernsen & Loewy, an immigration law firm with 32 offices worldwide, has set sail in an attempt to rescue the program, much as the HMS Invincible steamed to the Falklands in the 1980s as Margaret Thatcher took back those islands from Argentina.

On March 22 Fragomen, whose bottom-of-the column bio runs to 14 lines, wrote the lead article in the immigration bar's sometimes ponderous trade paper, Interpreter Releases. He was dealing with something troubling other than the economy: a guidance memorandum written months earlier by a senior USCIS official, Associate Commissioner Donald Neufeld.

Neufeld's memo, "Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements," dealt with under what conditions the program could be used to allow "job shops" to hire foreign workers and then place them in jobs away from the job shop's own facilities.

There has been a pattern of this kind of usage, and Fragomen complained, at some length, that the new guidance "imposes heightened evidence requirements on employers filing H-1B petitions" and otherwise threatens to make life a bit awkward for some H-1B employers. Fragomen wrote his critique before the news came out about the sharp decline in this year's applications for the program.