Report on H-1B Petitions Fiscal Year 2015 Annual Report to Congress October 1, 2014 – September 30, 2015 February 16, 2016 U.S. Citizenship and Immigration Services Assistant Secrermyfor Legislative A ffairs US. Department of Homeland Security Washington, DC 20528 Homeland i: a Security February 16, 2016 Foreword On behalf of the Department of Homeland Security, I am pleased to present the following ?Report on Petitions? for Fiscal Year 2015, prepared by US. Citizenship and Immigration Services. - Pursuant to statutory requirements, this report is being provided to the following Members of Congress: The Honorable Charles Grassley Chairman, Senate Judiciary Committee The Honorable Patrick J. Leahy Ranking Member, Senate Judiciary Committee The Honorable Robert W. Goodlatte Chairman, House Judiciary Committee The Honorable John Conyers, Jr. Ranking Member, House udiciaty Committee Inquiries relating to this report may be directed to me at (202) 447-5890. Sincerely, Assi tant Seer for Legislative Affairs Executive Summary The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Pub. L. No. 105-277, div. C, tit. IV, § 416(c), 112 Stat. 2681, imposes quarterly reporting requirements on U.S. Citizenship and Immigration Services (USCIS) concerning the H-1B petition fees and fee exemptions.1 To fulfill this requirement, USCIS submits the following report to cover the four quarters of Fiscal Year (FY) 2015, October 1, 2014 – September 30, 2015. The report provides information on:  the number of H-1B petitions;  the number of employers requiring an additional ACWIA petition fee as reinstituted by the H-1B Visa Reform Act of 2004 and those exempt from the nonimmigrant H-1B ACWIA petition fee; and  the number of aliens issued visas or otherwise provided H-1B nonimmigrant status pursuant to petitions filed by institutions or organizations described in section 212(p)(1) of the Immigration and Nationality Act (INA).2 In addition to the above, this report also provides information on the number of employers required to submit the Fraud Prevention and Detection Fee. In all parts of this report, quarterly and annual data for FY 2015 are presented. The data contained in this report were extracted from a USCIS Service Center electronic data file in October 2015. 1 Section 416(c)(2) of ACWIA imposes annual reporting requirements on USCIS concerning information on the countries of origin and occupations of, educational levels attained by, and compensation paid to, aliens who were issued H-1B visas or otherwise granted H-1B nonimmigrant status. This information is contained in USCIS’s FY 2015 report to Congress, Characteristics of H-1B Specialty Occupation Workers. 2 Information is also included in this report on those aliens in the United States who are granted a change of status to or extension of stay in the H-1B1 nonimmigrant classification under the United States-Chile or United States-Singapore Free Trade Agreements. This report does not include information on those aliens who are granted an H-1B1 nonimmigrant visa abroad as an employer is not required to file a petition with USCIS for those aliens. ii Report on H-1B Petitions Table of Contents I. Legislative Requirement ...........................................................................................................1 II. Background ...............................................................................................................................2 III. Data Report ...............................................................................................................................4 Section 3.1 – Number of H-1B petitions filed by employers in Fiscal Year 2015 and the number of H-1B petitions approved by USCIS during this period .....................4 Section 3.2 – Number of aliens provided nonimmigrant status pursuant to petitions filed by institutions or organizations described in section 212(p)(1) of the INA ............6 Section 3.3 – Fraud Prevention and Detection Fee pursuant to the H-1B Visa Reform Act of 2004 ...................................................................................................................10 iii I. Legislative Requirement Section 416(c)(1) of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Pub. L. No. 105-277, div. C, tit. IV, § 416(c)(1), 112 Stat. 2681, includes the following requirement: [T]he Attorney General3 shall notify, on a quarterly basis, the Committees on the Judiciary of the U.S. House of Representatives and the Senate of the numbers of aliens who were issued visas or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act during the preceding 3-month period. Furthermore, section 416(c)(3) of ACWIA requires each report to “include the number of aliens who were issued visas or otherwise provided nonimmigrant status pursuant to petitions filed by institutions or organizations described in section 212(p)(1) of the Immigration and Nationality Act.” 3 As of March 1, 2003, in accordance with section 1517 of Title XV of the Homeland Security Act of 2002 (HSA), Pub. L. No. 107296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Immigration and Nationality Act describing functions which were transferred from the Attorney General or other Department of Justice official to the Department of Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland Security. See 6 U.S.C. § 557 (2003) (codifying HSA, Title XV, § 1517). 1 II. Background The Immigration Act of 1990 established numerical limitations on the H-1B nonimmigrant classification4 to provide U.S. employers5 access to foreign skilled workers while ensuring worker protections. The numerical cap of 65,000 H-1B visas was reached for the first time in Fiscal Year (FY) 1997 and again in FY 1998 as demand increased significantly in the burgeoning technology sector. In October 1998, the 105th Congress enacted the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Pub. L. No. 105-277, div, C, tit. IV, 112 Stat. 2681. ACWIA temporarily increased the H-1B cap to 115,000 for FY 1999 and FY 2000 and to 107,500 for FY 2001, while establishing an affirmative role for U.S. employers to assist with education and training efforts. Under ACWIA, an H-1B Nonimmigrant Petitioner Fee account was established to fund training and education programs administered by the Department of Labor and the National Science Foundation. Employers, unless explicitly exempt under the law, were required to pay a $500 ACWIA fee for each H-1B worker sponsored. Employers who qualified as an institution or organization described in section 212(p)(1) of the Immigration and Nationality Act (INA) were exempted from payment of this fee. ACWIA imposed quarterly and annual reporting requirements on U.S. Citizenship and Immigration Services (USCIS) concerning the H-1B fee, fee exemption, and demographic H-1B worker data. The ACWIA fee of $500 was initially scheduled to sunset on October 1, 2001. The 106th Congress passed two bills that affected the H-1B program:  A bill enacted as the untitled Public Law 106-311, 114 Stat. 1247 (Oct. 17, 2000); and  The American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Pub. L. No. 106-313, 114 Stat. 1251 (Oct. 17, 2000). First, pursuant to Public Law 106-311, Congress raised the ACWIA fee from $500 to $1,000 while exempting additional types of employers beyond those described in INA § 212(p)(1) from payment of this fee and extending the applicability of the fee provision to qualifying petitions filed by employers through September 30, 2003. Second, AC21 temporarily raised the H-1B cap to 195,000 for FYs 2001, 2002, and 2003, while exempting certain H-1B workers from the numerical limits. Starting in FY 2004, the H-1B cap was reduced back to 65,000 per fiscal year. 4 The H-1B nonimmigrant classification is defined as “an alien … who is coming temporarily to the United States to perform services … in a specialty occupation described in section [214(i)(1)] or as a fashion model, who meets the requirements for the occupation specified in section [214(i)(2)] or, in the case of a fashion model, is of distinguished merit and ability, and with respect to whom the Secretary of Labor determines and certifies to the [Secretary of Homeland Security] that the intending employer has filed with the Secretary [of Labor] an application under section [212(n)(1)].” INA § 101(a)(15)(H)(i)(b). The H-1B1 classification is defined as an alien “who is entitled to enter the United States under and in pursuance of the provisions of an agreement listed in section [214(g)(8)(A)], who is engaged in a specialty occupation described in section [214(i)(3)], and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed with the Secretary of Labor an attestation under section [212(t)(1)].” Id. § 101(a)(15)(H)(i)(b1). 5 Agents, in addition to employers, may file an H-1B petition pursuant to 8 CFR 214.2(h)(2)(i)(F). All references to employers and any applicable fees discussed throughout this report also include agents. 2 On December 8, 2004, the 108th Congress passed the Omnibus Appropriations Act for FY 2005, which contained the H-1B Visa Reform Act of 2004, and made several changes to the H-1B program. See Pub. L. No. 108-447, div. J, tit. IV, 118 Stat. 2809. The H-1B Visa Reform Act of 2004 permanently reinstituted the ACWIA fee which had sunset on October 1, 2003, and raised it from $1,000 to $1,500 per qualifying petition. The H-1B Visa Reform Act of 2004 did not alter the exemptions of certain types of employers from payment of the fee altogether,6 and lowered the fee to $750 for employers who have no more than 25 full-time equivalent employees in the United States (including the number of employees employed by any affiliate or subsidiary of such employer). This fee applies to any initial H-1B petition filed on behalf of an alien by any employer or first extension request by the same employer for an alien filed after December 8, 2004, unless the petitioning organization is exempt from the fee. The H-1B Visa Reform Act of 2004 also instituted a new Fraud Prevention and Detection Fee (Fraud Fee) of $500 that must be submitted with a petition seeking an initial grant of H-1B or L nonimmigrant classification7 or by an employer seeking to change an alien’s employer within those classifications. The Fraud Fee does not apply to petitions filed with USCIS that extend or amend an alien’s stay in H-1B or L classification filed by a current employer. Finally, the H-1B Visa Reform Act of 2004 provided that up to 20,000 petitions filed on behalf of aliens who had earned a master’s degree or higher from a U.S. institution of higher education (as defined by 20 U.S.C. § 1001(a)) would be exempt from the numerical cap. This report covers the four quarters of FY 2015 and is presented in three parts:    Section 3.1 provides information on the number of H-1B petitions; Section 3.2 provides information on the number of employers requiring an additional ACWIA petition fee as reinstituted by the H-1B Visa Reform Act of 2004 and those exempt from the nonimmigrant H-1B ACWIA petition fee; and Section 3.3 provides information on the number of employers required to submit the Fraud Fee. In all parts of this report, quarterly and annual data for FY 2015 are presented. 6 See Section 3.2 of this report for further information about organizations that are exempt from the ACWIA fee. The L nonimmigrant classification is defined in section 101(a)(15)(L) of the INA as “subject to section 214(c)(2), an alien who, within 3 years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge ….” Other than being another classification subject to this fee, the L classification has no bearing on the information presented in this report. 7 3 III. Data Report8 Section 3.1 – Number of H-1B petitions filed by employers in Fiscal Year 2015 and the number of H-1B petitions approved by the USCIS during this period. Pursuant to section 214(c) of the INA, a U.S. employer using the H-1B program is required to file a petition with the Secretary of Homeland Security on behalf of an alien worker (the beneficiary). The petition must be approved before a visa is granted or an alien is provided nonimmigrant status. Accordingly, petition data is the basis of this report. Table 1 provides information on the number of H-1B petitions filed by employers in FY 2015. This table also provides information on the number of H-1B petitions approved by USCIS during this period. Petitions filed in a particular quarter are not necessarily adjudicated in that same quarter. A U.S. employer files the petition with USCIS to sponsor an alien worker as an H-1B nonimmigrant. This petition may be filed to sponsor an alien for an initial period of H-1B employment or to extend the authorized stay of an alien as an H-1B nonimmigrant. Several employers may file a petition for the same alien; however, for H-1B cap purposes such an alien will only be counted once. An employer may file a petition to sponsor an alien who currently has status as an H-1B nonimmigrant working for another employer or to amend a previously approved petition. Therefore, the total number of approved petitions may exceed the actual number of aliens who are provided nonimmigrant status as H-1B. 8 Sections 3.1 and 3.2 of this data report include information on those aliens in the United States who are granted a change of status to or extension of stay in the H-1B1 nonimmigrant classification under the United States-Chile or United States-Singapore Free Trade Agreements. It does not provide information on those aliens who are granted an H-1B1 nonimmigrant visa abroad as an employer is not required to file a petition with USCIS for those aliens. Section 3.3 does not account for aliens in the United States who are granted a change of status to or extension of stay in the H-1B1 nonimmigrant classification, however, because the Fraud Prevention and Detection Fee is not required for petitions seeking H-1B1 nonimmigrant status on behalf of an alien. 4 Table 1. Number of H-1B Petitions Filed and Number Approved by Quarter: FY 2013-FY 2015 Fiscal Year Petitions Filed Petitions Approved 9 Oct to Dec Jan to Mar Apr to Jun Jul to Sep Total 2013 40,048 39,433 159,380 60,606 299,467 2014 45,211 42,781 158,623 72,209 318,824 2015 51,964 46,088 176,042 74,575 348,669 2013 76,720 52,859 79,813 77,381 286,773 2014 64,526 58,121 91,779 101,431 315,857 2015 64,799 44,217 84,233 82,068 275,317 9 These figures represent all approved petitions during the respective fiscal year, irrespective of whether the petition was filed in the same or in a previous fiscal year. To illustrate, in FY 2015, USCIS received 348,669 petitions and approved 275,317 petitions. Of the 275,317 petitions that were approved, 237,901 were received and approved in FY 2015, whereas 37,416 petitions were received prior to FY 2015, but ultimately approved in FY 2015. 5 Section 3.2 – Number of H-1B petitions filed by institutions or organizations described in section 212(p)(1) of the INA. ACWIA added section 214(c)(9)(A) of the INA to require that the Attorney General impose a fee on an employer:  initially filing a petition to grant an alien nonimmigrant status in the H-1B classification;  extending the H-1B nonimmigrant stay of an alien (unless the employer previously has obtained an extension for such alien); or  obtaining authorization for an alien in H-1B status to change employers. The ACWIA provisions exempted certain types of employers described in section 212(p)(1) of the INA from the payment of this fee. The fee, effective December 1, 1998, was initially scheduled to sunset on September 30, 2001. With the passage of Public Law 106-311, the fee was increased from $500 to $1,000, effective December 18, 2000, with a sunset on September 30, 2003. Public Law 106-311 also amended section 214(c)(9)(A) of the INA by specifying certain employers that are exempt from the ACWIA fee beyond those employers described under section 212(p)(1) of the INA. The H-1B Visa Reform Act of 2004, enacted as part of the Omnibus Appropriation Act of FY 2005, reinstituted the ACWIA fee, made the fee permanent, and raised it from $1,000 to $1,500 per qualifying petition filed with USCIS after December 8, 2004; however, employers who have no more than 25 full-time equivalent employees who are employed in the United States (including the number of employees employed by any affiliate or subsidiary of such employer) must pay a $750 ACWIA fee. The H-1B Visa Reform Act of 2004 again exempted employers described in section 214(c)(9)(A) of the INA from the ACWIA fee. Section 214(c)(9)(A) exempts payment of the ACWIA fee in certain instances, as summarized below. Due to the passage of Public Law 106-311, this report exceeds the original reporting mandate: it covers all employers exempt from the fee as described in section 214(c)(9)(A), not only those described in section 212(p)(1). Specifically, these exemptions apply to employers that are:  Institutions of higher education defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. § 1001(a);  Nonprofit organizations related to or affiliated with an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. § 1001(a);  Nonprofit entities engaging in established curriculum-related clinical training of students registered at any institution defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. § 1001(a);  Nonprofit research organizations and Government research organizations; 6    Primary or secondary education institutions; Filing a second or subsequent request for an extension of stay for a particular alien; Filing an amended petition without a request to extend the nonimmigrant stay of the alien beneficiary; or  Filing a petition solely to correct a USCIS error. Table 2 shows the number of petitions that were filed in FY 2015 that required submission of the ACWIA fee as well as those petitions exempt from that fee. Table 3 shows the same information for all petitions approved during the same period regardless of when filed. 7 Table 2. Number of H-1B Petitions Filed by Quarter and Reason for ACWIA Fee or Exemption from Fee: FY 2015 For Fiscal Year 2015 Oct 2014 to Dec 2014 51,964 Jan 2015 to Mar 2015 46,088 Apr 2015 to Jun 2015 176,042 Jul 2015 to Sep 2015 74,575 FY 2015 Without any fee exemptions 32,785 27,864 142,095 39,622 242,366 With at least one exemption 19,179 18,224 33,947 34,953 106,303 3,564 3,175 24,849 4,458 36,046 29,220 24,684 117,241 35,161 206,306 1 5 5 3 14 Employer is an institution of higher education 3,778 4,057 6,844 3,457 18,136 Employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education 1,558 2,163 4,908 1,632 10,261 Employer is a nonprofit research organization or a government research organization Employer is filing a second (or subsequent) extension of stay for an H-1B nonimmigrant 1,145 1,371 1,761 908 5,185 10,871 9,999 14,958 15,045 50,873 TOTAL PETITIONS FILED SIZE OF EMPLOYERS SUBJECT TO ADDITIONAL FEE Employer of no more than 25 full-time equivalent employees Employer of 26 or more full-time equivalent employees Number of full-time equivalent employees 10 unknown 348,669 REASONS FOR EXEMPTION11 10 Unknown values may have occurred as a result of data entry errors or improper electronic transfer from a USCIS Service Center electronic data file. 11 A petition may be counted in multiple rows if the employer indicates that the petition is exempt from the fee for multiple reasons. 8 Employer is filing an amended petition without an extension of stay for an H-1B nonimmigrant Employer is filing a petition in order to correct a USCIS error Employer is a primary or secondary education institution Employer is a nonprofit entity engaged in clinical training 3,499 2,678 8,313 15,082 29,572 19 12 21 11 63 413 489 1,394 771 3,067 1,450 1,989 4,083 1,378 8,900 Table 3. Number of H-1B Petitions Approved by Quarter and Reason of Exemption from ACWIA Fee: FY 2015 For Fiscal Year 2015 TOTAL PETITIONS APPROVED Oct 2014 to Dec 2014 64,799 Jan 2015 to Mar 2015 44,217 Apr 2015 to Jun 2015 84,233 Jul 2015 to Sep 2015 82,068 FY 2015 Without any fee exemptions 44,083 27,269 66,208 63,117 200,677 With at least one exemption 20,716 16,948 18,025 18,951 74,640 5,684 2,971 7,610 9,162 25,427 38,398 24,298 58,597 53,955 175,248 1 0 1 0 2 Employer is an institution of higher education 4,218 3,367 4,449 4,078 16,112 Employer is a nonprofit organization or entity related to, or affiliated with an institution of higher education 1,860 1,668 2,827 2,234 8,589 Employer is a nonprofit research organization or a government research organization 1,205 1,145 1,175 1,001 4,526 275,317 SIZE OF EMPLOYERS SUBJECT TO ADDITIONAL FEE Employer of no more than 25 full-time equivalent employees Employer of 26 or more full-time equivalent employees Number of full-time equivalent 12 employees unknown REASONS FOR EXEMPTION13 12 Unknown values may have occurred as a result of data entry errors or improper electronic transfer from a USCIS Service Center electronic data file. 13 A petition may be counted in multiple rows if the employer indicates that the petition is exempt from the fee for multiple reasons. 9 Employer is filing a second (or subsequent) extension of stay for an H-1B nonimmigrant Employer is filing an amended petition without an extension of stay for an H-1B nonimmigrant Employer is filing a petition in order to correct a USCIS error Employer is a primary or secondary education institution Employer is a nonprofit entity engaged in clinical training 12,149 9,859 8,279 9,334 39,621 3,179 2,575 2,709 3,693 12,156 17 10 7 11 45 672 397 694 722 2,485 1,682 1,531 2,562 1,895 7,670 Section 3.3 – Fraud Prevention and Detection Fee pursuant to the H-1B Visa Reform Act of 2004. The H-1B Visa Reform Act of 2004 imposed an additional fee of $500 (“Fraud Prevention and Detection Fee” or “Fraud Fee”) for certain H-1B or L petitions. A U.S. employer seeking initial approval of H-1B or L nonimmigrant status for a beneficiary, or seeking approval to employ an H-1B or L nonimmigrant currently working for another U.S. employer, must submit this additional $500 fee. Table 4 shows the number of H-1B petitions filed in FY 2015 that required submission of the Fraud Prevention and Detection Fee. Table 5 shows the same information for all petitions approved during the same period regardless of when filed. Table 4. Number of H-1B Petitions Filed Requiring Fraud Prevention and Detection Fee: FY 2015 For Fiscal Year 2015 TOTAL PETITIONS FILED WITH FEE Oct 2014 to Dec 2014 Jan 2015 to Mar 2015 Apr 2015 to Jun 2015 Jul 2015 to Sep 2015 FY 2015 22,096 20,826 125,368 19,762 188,052 7,146 7,214 108,104 6,478 128,942 197 179 275 185 836 14,753 13,433 16,989 13,099 58,274 REASONS FOR FRAUD FEE New employment (including new employer filing H-1B extension) New concurrent employment Change of employer 10 Table 5. Number of H-1B Petitions Approved Requiring Fraud Prevention and Detection Fee: FY 2015 For Fiscal Year 2015 TOTAL PETITIONS APPROVED WITH FEE Oct 2014 to Dec 2014 Jan 2015 to Mar 2015 Apr 2015 to Jun 2015 Jul 2015 to Sep 2015 FY 2015 26,732 18,697 61,636 52,656 159,721 12,274 6,482 49,699 40,076 108,531 242 149 164 131 686 14,216 12,066 11,773 12,449 50,504 REASONS FOR FRAUD FEE New employment (including new employer filing H-1B extension) New concurrent employment Change of employer 11