H1B Demand Decreased by 40% - Latest survey report (Jan-2009)

The recent survey conducted by www.corp-corp.com projects a 40% decrease in the demand for highly skilled foreign software professionals. These projections may change based on next few months of economic activity. These results reflect the responses of 200 registered companies with Corp-Corp, an online marketplace for IT consultants. The online survey was conducted from Jan 15 to Jan 25.

Key findings

• The number of H1B filings not likely to exceed the cap on Apr-1.

• 75% of companies are planning to file fewer H1B than last year.

• 64% of companies are planning to file fewer than half of the applications.

• 32% of companies who filed H1B last year are not planning to sponsor H1B at all.

• Less than 25% of employers are likely to file same or slightly more H1B's this year as last year.

More than 10 million IT professionals are working in US and there is a need for 2 million professionals for consulting jobs, most of them are short term and project basis. Still there is a demand for software professionals in some technology areas. Please check our Job analysis report for more details about the demand in the skills.

Challenges H-1B EMPLOYER'S face in today's environment - AVOID COSTLY MISTAKES.

Courtesy Corp-Corp and Law Offices of Rakesh Mehrotra

Corp-Corp.com is hosting conferences across USA and Attorney Rakesh Mehrotra will be one of the speakers in all our conferences, we encourage our users to participate in our conferences, meet him personally to understand the ever changing immigration laws. Special discounts are available for Corp-Corp members. Please check our conference schedule

The current weak economy, burdensome Requests for Additional Evidence ("RFEs") targeting computer consulting companies, unpredictability of volume of H-1B petitions that may be filed in FY 2010 and the uncertainty of H1B lottery raises many concerns, including questions as to how many cases one should file to increase the odds of success.

Burdensome RFEs

Recently USCIS has started issuing RFEs specially targeting computer consulting companies. Even companies that are well established and have not had any problems with their H-1Bs in the past are facing this problem. RFEs are being issued for new cases as well as extensions and transfers. It appears that these RFEs are being issued in an effort to combat what USCIS believes to be a high incidence of fraud particularly with respect to computer consulting companies. In its September 2008 H-1B Benefit Fraud & Compliance Assessment report USCIS examined 246 cases from a total of 97,000 cases (approved, denied or pending) filed between October 1, 2005 and March 31, 2006 and determined that 13.4% cases represented fraud and 7.3 % cases represented a technical violation for an overall violation rate of approximately 21%. 46% of the beneficiaries were born in India. After the release of this survey USCIS seems to be targeting "job shops" where the petitioner has placed the employee at a client site and the petitioner has no control over employment and the employee is controlled by the end client where the employee is ultimately assigned. In such situations USCIS does not believe that the petitioner is the actual employer and requests end client contracts and work orders which outline the job description and minimum requirements for the job from the end client. These RFEs are overly broad and burdensome. Initial filings done with proper supporting documents can avoid these extremely cumbersome RFEs. An experienced immigration attorney can help tremendously in filing the initial petition with proper supporting documents and avoiding the burdensome RFEs.

H1B Quota History

There is no way to know what the odds will be in the H-1B lottery for the upcoming Fiscal Year (FY) 2010. In FY 2009, both the regular and the advanced-degree caps were reached within the first five days of filing. Based on the recent history of the volume of filings far exceeding the available cap numbers, a lottery is anticipated for FY 2010 as well. We suggest that the resources that may be needed in the US for the next year at least be identified in the next few weeks and the information and documents necessary to process the H-1B petitions be sent to an experienced immigration attorneys as soon as possible.

Be careful about multiple H-1B filings - disproportionate to current number of employees:

Many employers file far more H-1B cases than they actually require, in an effort to get enough approved to fill their employment needs. These volume filings have created difficulties for some employers, particularly where the number of filings is significantly disproportionate to the number of current employees. The employer must be able to demonstrate available employment for all of those prospective employees. It is permissible to file as many H1Bs as are needed to fill the employer's needs, however, the employer should expect to have to explain and document the existence of bona fide job availability for the sponsored foreign nationals. Over-filing can be counter-productive, resulting in high rates of denial.

Be aware of past high volume filings

Employers who may have filed high numbers of H-1B petitions in past years may also be questioned. This occurs when the number of employees listed on the current H1B petitions does not reflect the employment of those for whom petitions were filed in the past. For example, if an employer has 10 employees, and obtained approvals for fifty additional H1B employees in FY 2009, and for FY 2010 the employer only shows 15 employees then questions could arise as to why the H-1B petitions do not reflect an appropriate increase in the number of employees. Employer must be prepared to provide a reasonable explanation for this discrepancy..

No Benching

Under the USCIS "no benching" provisions, the employer is obligated to pay the required wage even if the H-1B nonimmigrant is in "non productive" status due to a decision by the employer or because of lack of assigned work. However, the employer does not have to pay the H-1B nonimmigrant the required wage "if there has been a bona fide termination of the employment relationship" or if the H-1B nonimmigrant is in non productive status due to conditions unrelated to employment that remove the nonimmigrant from his or her duties at his or her "voluntary request and convenience" or render the H-1B nonimmigrant unable to work. Please note USCIS has imposed numerous conditions regarding what is proper "termination of employment" and you should consult an experienced immigration attorney to make sure you are in compliance. Termination may not be effective from USCIS point of view just because a termination letter may have been issued. Several other steps need to be taken.

Expert help is available

Employers that need help with H-1B filings and strategy issues with respect to the quota can contact experienced and knowledgeable attorneys at the Law Offices of Rakesh Mehrotra.

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