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New rules may bring 'false H-1B demand'

Patrick Thibodeau | June 1, 2011
U.S. says prosed new H-1B visa process could lead to significant savings for businesses.

The U.S. Citizenship and Immigration Services has proposed a new process for filing H-1B visa petitions that it says could help businesses save millions of dollars, particularly due to reduced legal fees.

But some critics warn that the government proposal would also create a new way to game the H-1B visa system.

The USCIS proposal aims to prevent a reoccurrence of what happened in 2009, when the government received 163,000 H-1B petitions for 85,000 slots allowed under the cap.

The result of that year's overload ofH-1B applications: "Multiple truckloads of petitions were stacked on pallets on loading docks, in offices and in hallways," said the USCIS in its proposol.

Employers had to spent thousands of dollars in legal fees to file these petitions, wothout any guarantee that it would survive a lottery held to make the final selection.

The USCIS said its proposal aims to fix the problem.

Under the proposed rule, employers would initially register electronically by completing a relatively simple form in a process that should take about 30 minutes. The electronic registrations would be used by officials to create a first cut of full registrants. A waiting list would be created if the number H-1B registrations exceeds the cap limit.

The USCIS says that the "main benefit that will result from this rule is that employers that want to hire an H-1B worker will be able to forgo the time, effort, and expense associated with the preparation of a full H-1B petition" and completing U.S. Department of Labor paperwork, "until USCIS notifies the H-1B employer that space exists under the cap."

Some immigration attorneys believe the USCIS plan would create a new way to game the system of applying for H-1B visas.

Brian Halliday, a Cleveland-based immigration attorney, told the USCIS that the proposal seems "like a reasonable idea."

However, in a letter commenting on the proposal, he added that "the reality is that a small handful of U.S. employers - mostly IT consulting companies - use the vast majority of H-1B visa numbers each fiscal year. Their existence depends on getting as many H-1B visa numbers as possible each year; to the detriment of all other H-1B employers in the U.S."

Thus, Halliday asked, how will this electronic system "be safeguarded from potential abuses such as 'stuffing' the electronic registration system with huge numbers of speculative H-1B cases to hedge their bets for a number; or other unfair 'gaming' of the H-1B registration process system?"

In an interview, Halliday likened the registration system to music fans that "buy all the front row tickets to a rock concert."


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