bigstock-Passport-Gavel-5802855February 9, 2011

This is the second post in a four-part series analyzing the current state of the H-1B visa program. Our H-1B visa lawyers hope the blogs will help our neighbors in Ohio and Michigan understand better the H-1B program as it now stands.

In January the United States Government Accountability Office (GAO) released a detailed review of the H-1B visa program. The intent of the review was to create awareness of weaknesses and inconsistencies within the program. The findings clearly state that there are risks and liabilities within the framework of the H-1B program.

In order to strengthen immigration within the United States, as well as the workforce in specialty industries, Homeland Security must address the issues that surfaced in the GAO’s review. Some of the greatest risks are associated with the determination of the petition cap each year, petition acceptance inconsistencies, a lack of regulating companies that are violating the system, and the weakness of the entire Homeland Security data collection system.

According to our H-1B visa attorneys, the designated yearly cap has a detrimental and limiting effect on the current H-1B visa program. The GAO review highlights that determining the precise cap should be balanced with the state of the economy. However, the precise numbers of visa petitions that are accepted in addition to the number that are denied has never been documented accurately. As a result, analyzing how to improve the system and set a reasonable cap is challenging.

From 2005 to 2009 Homeland Security set the cap at 65,000 regular requests and 20,000 master requests each year. Due to the strengthening economy, the cap was reached very quickly in 2008 and 2009. Petitions can be submitted for the fiscal year beginning on April 1. During prosperous years the cap was reached within a number of days. Once the cap is reached employers stop sending in petition requests because Homeland Security will no longer review them.

GAO’s review of the H-1B program stressed that one of the primary weaknesses within the system is the lack of documentation that exists throughout all levels of the program. Over the years, Homeland Security has never developed any way to measure demand for H-1B visas. The number of petitions that are rejected or submitted after the cap has been reached has never been recorded or studied in order make future adjustments and improvements to the program.

The GAO found that as the number of H-1B petitions declined, the number of other visa petitions increased. From 2000 to 2008, as the number of H-1B petitions decreased, the number of L-1 visa petitions increased by 53%. The GAO determined that companies, particularly larger companies, were sending rejected H-1B employees overseas for a period of time. They would then have the same employees sent back to the United States on an L-1 Visa. The L-1 Visa deals with intercompany manager transfers.

The GAO review also stressed that four internal departments are supposed to work together to track all accepted visa petitions. The departments include State, Homeland Security, Labor and Justice. The review noted that very little information is shared between the departments. This results in a lapse of program monitoring and punishment for companies that willingly abuse the system in order to make business gains.

The report suggests that all of the departments must screen H-1B Visa employees more efficiently and program abuses must be aggressively targeted in order to improve the reputation of the entire program.

The GAO review clearly states that Homeland Security does not keep track of the number of H-1B visa employees a company has at any given time. As a result, large companies abuse the system and maintain a large number of H-1B employees while smaller companies are fortunate to get even one petition approved. This lack of balance and structure is hurting the business sector as well as the reliability and structure of the immigration process.

The GAO explains that in 2009, ten of the top 85 staffing agencies in the United States severely abused the visa program without obtaining any form of discipline. Combined, those ten companies received 11,456 H-1B petition approvals for that year. These petitions accounted for six percent of the entire number of visas issued in 2009.

The GAO’s H-1B review emphasizes the need for internal structure and communication. The current state of the program allows certain business sectors to consume a majority of the visa petitions offered every year. These abuses discriminate against small companies as well as a large portion of skilled and employment-worthy immigrants. Changes and advances must be made within the programs in order to restore a critical level of structure and control to what has become a declining system.