Does the delay on the processing of your H-1B, employment based non-immigrant visa make you feel like pulling your hair out? You are not alone. The USCIS in its infinite wisdom has decided that it will drastically increase its enforcement efforts, while at the same time not hiring new staff to adjudicate H-1B visas. As a result of this unfunded mandate to allocate resources that the services centers do not possess, both the California and Vermont Service centers are reporting absurd delays in processing H-1B petitions which were filed through the normal processing methods. Whether these laughable wait times are incidental to or a desired effect of the USCIS’s war against the H-1B visa, what is apparent is that this conflict has become a war of attrition with documented, bachelor’s degree holding foreign nationals and their families enduring effects of the of the collateral damage.
What caused the delays to increase so drastically?
A variety of forces have converged to create this unfortunate result. After reporting processing times in the area of two months in early 2010, the service provided by these service centers has taken a drastic turn for the worse. First, we should begin by blaming everyone’s favorite scapegoat, the economy. Obviously the economy, backed by speculation on the housing industry, crashed into a rescission in 2007. As always happens in a down economy, non-immigrants, who have no voting rights yet are taxed as any US citizen, are among the first to be targeted by political pundits from both sides of the aisle. Simply put, it is not politically popular for foreign nationals to have good jobs in American companies when US citizens are being laid off, even if these foreign nationals happen to hold master’s degree in software engineering. Therefore, pressure comes down from above to reduce the number of H-1B visas granted.
However, this economic thinking is contrary to the reality of the H-1B visa landscape today. In 2009, H-1B visas were awarded at an extremely slow rate, indicating the demand for such workers was in line with demand for all workers, i.e. slow. Down from the usual pattern of selling out within hours of the new fiscal year opening, the H-1B visa cap was not reached until December of 2009, a span of nearly nine (9) months. The numbers do not indicate that H-1B workers were being hired before American workers who could do the same job. Moreover, H-1B workers provide a competitive advantage to many companies who cannot find enough Americans with specific skill sets in science and engineering here in the states. In any case, the economy has resulted in pressure being placed on the non-immigrant class of people in the United States, a people who are always the easiest target for politicos.
Secondly, the Neufeld memo of January 2010 mandated that the legal analysis of the requirement of “employer control” of H-1B employees that is incongruent with reality and more befitting the analysis of a “frolic” verses a “detour” in Tort law. The analysis of all H-1B visa applications involving computer consultants who are placed off site under the Neufeld guidelines has resulted in an exponential increase in Requests for Additional Evidence (RFE) and Notice of Intent to Deny Decisions (NOID) issued by the USCIS. Visa petitions are adjudicated by living, breathing individual immigration officers. Every RFE doubles the amount of time needed to adjudicate an H-1B petition. Every notice of intent to deny contains a detailed argument and takes much more time to draft than an approval notice. Additionally, immigration lawyers have been including more and more evidence into each petition in an attempt to show that H-1B employers really do control their H-1B employees no matter where they happen to physically work. As a result of all of this paperwork, H-1B petitions that formerly took days to process are now estimated to take years to process. The USCIS has not indicated that it has or plans to hire additional officers to take care of this increase in work load. Therefore, the work keeps piling up on each immigration officer.
Finally, seeing the processing times increase, although not reported by the USCIS, immigration attorneys, petitioners and beneficiary’s began to utilize the Premium Processing Service offered by the USCIS, which guarantees adjudication of a petition within 15 business days. The premium processing service has become inundated with petitions, beyond what the premium processing staff can handle. Therefore, officers have been pulled from the regular processing H-1B line to the premium processing H-1B line, further exasperating this problem.
What can be done?
Premium processing appears to be the most advisable option. Our firm is still experiencing reasonable processing times by filing in this manner. H-1B visas can still be had; however there is currently no reliable way to gauge when people who file under regular processing may have them.
How to Contact Us
If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.