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 And they're also supposed to add withdrawn or revoked H-1Bs back in to the mix.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.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.