international law quarterly
spring 2017 • volume XXXIII, no. 2
Think Outside the Box, from page 31
Verification Program (ASVVP), designed to complement the Department of Homeland Security’s antifraud efforts.13 Initially, the ASVVP only performed H-1B site inspections; however, as of fiscal year 2014, the program has been expanded to cover L-1 site visits.14 Under the program, site visits are conducted by the Fraud Detection and National Security directorate (FDNS) of the USCIS. During an FDNS site visit, the inspector is typically charged with verifying the existence of the employer, the validity of the information the employer provided in the H-1B or L-1 petition, and whether the foreign national is working in compliance with the terms of the H-1B or L-1 approval. It is interesting to note that the FDNS site visits occur post adjudication (approval ) of the H-1B and L-1 petitions by the USCIS.15
Perhaps the biggest challenge to employers using the H-1B program is the H-1B annual quota, also known as the “numerical cap.” The majority of employers that file H-1B petitions are subject to an annual quota. In recent years, petitioner employers have faced the additional hurdle of not having their petitions adjudicated by the USCIS due to the numerical limitation on the H-1B
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classification. Specifically, the H-1B numerical cap comprises 65,000 H-1B visas per fiscal year and an additional 20,000 per year reserved for foreign national beneficiaries who have earned a U.S. master’s degree or higher.16 Based on free trade agreements entered into by the United States with Singapore and Chile, from the 65,000 H-1B visas available per fiscal year, there are 1,400 H-1B’s, called H-1B1’s, reserved for professionals from Chile and 5,400 for professionals from Singapore, per fiscal year.17 Because of the numerical cap and the high demand for H-1B workers in the past several years, the USCIS has relied upon a computer-generated random selection process to select, from the large pool of petitions received, only enough petitions to meet the numerical cap.18 During both 2015 and 2016, only 36% of the petitions filed were selected for review.19 Clearly, the numbers reflect that the H-1B process has become one based on luck, with worsening odds each year. On the congressional side, emboldened by the results of the BFCA and subsequent programs instituted by the USCIS such as VIBE and the ASVVP, Iowa Senator Chuck Grassley spearheaded the initiative to eliminate perceived abuses in the H-1B and L-1 classifications. In so doing, he introduced the H-1B and L-1 Visa Reform Act of 201320 and subsequently, the H-1B and L-1 Visa Reform Act of 2015.21 This legislation called for substantive revisions to the H-1B and L-1 classifications, including reforms to increase enforcement and modify wage requirements. Though Senator Grassley’s proposed legislation in 2013