USCIS has told AILA that between the California Service Center and the Vermont Service Center, perhaps as many as 17,000 cap-subject H-1B petitions filed between April and mid-June remain unadjudicated, and many remain completely “untouched” by examiners. That means that USCIS has done very little, or nothing, with nearly 20% of the petitions filed by U.S. employers seeking the services of foreign high-skilled workers in fields as diverse as science, technology, business, education and marketing. USCIS has refused AILA’s requests to speed up processing of the backlog of H-1B petitions, saying that businesses that want faster service should request Premium Processing.

Telling a large corporate petitioner to pay $1225 for Premium Processing Service in order to get an H-1B petition acted on after it has sat untouched for four months or more is bad enough – you’d think that for the more than two thousand dollars in filing fees that most petitioners pay that USCIS would act on a petition with greater alacrity – but, we know from USCIS’ own data from the 2008 H-1B Benefit Fraud & Compliance Assessment report that many of the businesses that use the H-1B program to meet needs for highly skilled experts are smaller businesses, those with fewer than 25 employees, with revenues under $10 million, and operating for less than ten years – the emerging companies and start-ups that are the focus of the agency’s entrepreneurial initiatives.

Businesses don’t embark on the H-1B process lightly. Plans to bring on an H-1B usually start early in the year, and employers know quite well that the candidate won’t be able to start until October 1st, at the earliest. Projects are mothballed, customers are warned, and contracts are put on hold, waiting for the beginning of the new fiscal year and the arrival of the specialist so that folks can get back to business. For those employers lucky to have former students working on practical training, which expires on September 30th, seamless and uninterrupted employment is expected, or at least hoped for. If the candidate is overseas, arrival will be further delayed while a visa is obtained from a U.S. consulate.

All of these delays could be avoided if USCIS would efficiently process H-1B petitions. It’s not like there has been a change in the law that has caused the delays. They simply haven’t, don’t have a reason for the backlogs, and when they were asked late in August to speed up processing, they said they were trying, but they weren’t going to make any special efforts, and, if a business wants faster service, to pay up.

Exacting another twelve hundred dollars from a small business to get USCIS to do in fifteen more days what it hasn’t done for over four months sure doesn’t seem to be a way to promote startup businesses and spur job creation. USCIS needs to get with its own program and promptly adjudicate the pile of H-1B petitions that have been on the shelves for months.