H-1B cap Reached Once again | Weinstock Immigration Lawyers | Expert Advice & Representation in Immigration Law

U.S. employers are fighting for the chance to hire skilled foreign workers, but unsurprisingly once again, the annual H-1B cap was reached within five business days. USCIS began accepting H-1B petitions on April 3, 2017 and by April 7, USCIS announced that it had received more petitions than the entire H-1B cap for Fiscal Year (FY) 2018 allows. USCIS will carry out a lottery to determine which companies will be able to employ the workers they chose to sponsor. This illustrates the contrast between the economic demand and a cap that does not accommodate this economic potential.

The Congressional limit on H-1B new hires is 65,000, and an additional 20,000 for foreign professionals who graduate with an advanced degree from U.S. universities that meet certain requirements. For FY 2017, USCIS received more than 236,000 petitions during the five-business-day filing period.

The Trump administration declared that it would target the H-1B program and other employment-based visa programs to detect and prevent fraud and abuse and protect U.S. workers.

It is unclear how they intend to define fraud and abuse, but the initial focus would appear to be on whether H-1B workers are receiving the proper wage for, and working in, their petitioned occupation. USCIS announced changes to the H-1B program that may predict larger changes likely to have repercussions for U.S. employers.

USCIS also announced that it has established a dedicated email address through which anyone, including H-1B workers, can report their suspicions about possible “fraud or abuse.” Unfortunately, this approach is along the lines of other DHS attempts to publicly shame individuals or jurisdictions that they believe are uncooperative.

There are many problems with these approaches. For example, with respect to their inability to validate basic information, USCIS used Dunn & Bradstreet’s Validation Instrument for Business Enterprise (VIBE) Program information for several years. When USCIS cannot confirm information in VIBE that an employer has included about itself in an H-1B petition, the agency issues a request for additional evidence. But many employers, especially small ones and non-profits, do not submit information to VIBE. This can result in VIBE having either no information or information that does not match with what the petitioning employer submitted to USCIS directly. Thus this is not a sign of fraud or abuse, and will likely result in additional delays and obstacles for those employers.