; David Rubman explanation of FOIA request
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David Rubman explanation of FOIA request


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									                       RUBMAN &
              Providing experienced U.S. immigration counsel
                to individuals, businesses and organizations


To:     Immigration Attorneys

Fr:     David Rubman

Date:   February 22, 2012

Re:     Preliminary Analysis of H-1B Data FY 2009-2012

      I undertook this analysis to determine if USCIS is

administering the H-1B caps properly.           Because USCIS cuts

off the H-1B application period well in advance of the end

of the fiscal year because it claims to have reached the H-

1B caps, the data should show that it issues H-1B approvals

at or near the 65,000 and 20,000 caps.1           Unfortunately the

data shows that USCIS issued far fewer H-1Bs in each year

since 2009.

      USCIS has published H-1B data only until FY2009, even

  I recognize that the 65,000 cap is reduced by numbers set
aside for the Chile-Singapore applicants, but since only a
few hundred such numbers are used each year, the previous
years’ unused numbers are put back into the annual quota
and are not a significant factor for this analysis.


                53 W. Jackson Blvd. #750 Chicago, IL 60604
                   Tel: (312) 341-1907 Fax: (312) 341-0797
though the AC21 legislation mandates quarterly and annual

reports of H-1B usage.                 In its FY2009 annual report2 USCIS

lists data for petitions for initial employment:

                                FY 2006         FY 2007           FY 2008           FY 2009

Petitions Filed                 121,724         114,222          122,634            105,775

Petitions Approved              109,614         120,031          109,335              86,300

        The 2006-2008 data seems consistent with USCIS

complying with its statutory obligation to issue 65,000

cap-subject visas as well as 20,000 toward the Master’s cap

and an unlimited number of visas for cap-exempt employers,

i.e. universities and non-profit research institutions. In

those years, over 109,000 visas were approved, meaning that

about 65,000 visas were issued for cap-subject employers;

20,000 for Master’s cap cases; and at least 24,000 for cap-

exempt employers each year.

        The 2009 data dramatically diverges from the pattern.

In that year, 105,775 initial petitions were filed and only

86,300 petitions were approved.                      If the historical pattern

of at least 24,000 were approved for cap-exempt employers

and 20,000 for Master’s cap cases, then only about 42,000

 Characteristics of H-1B Specialty Occupation Workers, FY
2009 (USCIS, April 15, 2010), posted on USCIS website at:


                      53 W. Jackson Blvd. #750 Chicago, IL 60604
                         Tel: (312) 341-1907 Fax: (312) 341-0797
out of the statutorily-mandated 65,000 visas were issued.

That is a shortfall in the range of 23,000.

   Because of the troubling data, I filed a FOIA request

in January 2012 asking for data for initial H-1B

application for FY2010, 2011 and 2012.            I received the

response yesterday.

     The response is more detailed than the previous

years’ data as it separates out cap-subject and cap-exempt

applications.    I am making the assumption that the cap-

subject data relates to the 65,000 regular cap, and the

cap-exempt data includes both the 20,000 Master’s cap and

applications filed by universities and non-profit research


    The data relating to the 65,000 cap boils down to:

                             FY 2010           FY 2011

Petitions Filed              67,200            72,378

Petitions Approved           48,397            68,888

Petitions Denied             32,305            27,637

     Obviously this data does not add up.              The denials and

approvals should add up to the number of petitions filed

(with some margin of difference for pre-approval

withdrawals).    So I am making some educated guesses on what


                53 W. Jackson Blvd. #750 Chicago, IL 60604
                   Tel: (312) 341-1907 Fax: (312) 341-0797
this means:

      a.   The data for petitions filed and denials are

           probably the most accurate, as they are

           consistent with 2009 data (taking into account

           the 2009 data includes 20,000 Master’s cap cases

           and maybe another 20,000+ cases for universities

           and non-profit research institutes) and with

           anecdotal evidence of large numbers of denials.

      b.   If the denial data are accurate, the data for

           approved petitions are somewhat overstated in

           2010 and grossly overstated for 2011.           As the

           2011 approval number exceeds the 65,000 cap, I

           must assume it is incorrect data.          If the 2010

           approval data is correct, it shows that USCIS

           approved only 48,397 of the 65,000 quota, a

           shortfall of over 16,000.        Since the denial rate

           for 2011 is similar, I must assume that in 2011

           the approval number is also significantly lower

           than the 65,000 quota.

      c.   The number of approved cases counted toward the

           cap should be further reduced by some of the

           withdrawn and revoked cases, making the approved

           cases even lower.


              53 W. Jackson Blvd. #750 Chicago, IL 60604
                 Tel: (312) 341-1907 Fax: (312) 341-0797
    This incomplete data points to only one conclusion:

USCIS has issued many fewer than the statutorily-mandated

65,000 H-1B visas in 2009, 2010 and 2011, and most likely

also in 2012.

   I will follow up with USCIS to get more information in

response to my FOIA.      I leave it to others to use this data

to ensure that USCIS complies with its legal obligations in

FY2012 and in the future.


                53 W. Jackson Blvd. #750 Chicago, IL 60604
                   Tel: (312) 341-1907 Fax: (312) 341-0797

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