Inefficient and Wrong-Headed Work Visa Crackdown

This article describes what I am seeing in my direct experience in the world of U.S. business immigration. The CIS is issuing excessive requests for additional evidence even where an applicant is seeking an extension of an existing status with no changes in the underlying job duties, job location, or conditions of employment. Granted, the law properly requires petitioning companies and applicants to establish eligibility for the requested status. But, the current administration has issued guidelines that encourage CIS officers to demand more and more evidence of obvious facts (and give more leeway to deny petitions). One particularly egregious and comical example from my own practice: The CIS asked my client, a huge, well-known airline, to prove it was an existing business as part of its H-1B petition for a financial analyst. The petition was approved but only after unnecessary expense and time spent proving facts that are common knowledge to any living, breathing person. These new interpretations of existing law and regulations are inefficient and wasteful and contradict any professed goal of streamlining government bureaucracy. And, to be clear, I wholeheartedly support a crackdown on unscrupulous companies that abuse the H-1B program or any visa program. The current administration’s new rules and unreasonable interpretations of existing laws and regulations do not effectively address visa fraud because they treat law-abiding companies with long histories of closely following immigration law the same as companies that abuse the system.

Timothy R. Bakken
Founder

CIS Continues to Clamp Down on Lawful Immigration

On October 23, 2017, the CIS made official what immigration attorneys have been seeing in practice for a long time:  Dramatically higher and more intense scrutiny of extension petitions for nonimmigrant workers.  In the past, CIS understood that a prior approval of a petition should be given consideration, i.e., if CIS previously granted a petition it is logical to assume that CIS knew what it was doing and knew that it was inefficient and unnecessary to re-adjudicate the entire matter each time an extension was requested. CIS has always had the authority, as it should, to question a prior approval where a CIS officer suspects fraud or a material change in the underlying eligibility for a particular nonimmigrant status, so the intention of the new guidance is unclear except that it will force petitioners and individuals to spend more money and time trying to prove to CIS what CIS has already accepted in a prior filing.  So much for encouraging a dynamic and efficient 21st century economy!  The new guidance applies to all nonimmigrant work categories that require filing of an I-129 petition – H-1Bs, H-2Bs, L-1s, Os, Ps, and others.  The policy takeaway:  This administration really does not see immigration as a benefit to our country’s culture and economy.  The practical takeaway: Overdocument!  U.S. businesses and individuals trying their hardest to follow the immigration laws and procedures will have to try even harder and even when they do everything right will face increased uncertainty in the future. Read more here. 

Timothy R. Bakken
Founder

ICE Increasing Workplace Raids

According to the Director of ICE, employers should prepare for a huge increase in worksite raids and enforcement actions in the future.  U.S. businesses that employ foreign workers should make sure their paperwork and processes are in order, including I-9s, H-1B public access files, and all immigration-related paperwork. Learn more here. 

Timothy R. Bakken
Founder

A reminder of the reality of H-1B visas.

Contrary to some reports, the H-1B visa program does not punish U.S. workers or unfairly benefit foreign workers.  My clients include companies with employees holding H-1B visas alongside a far-majority of those companies’ workforces who are U.S. citizens.  U.S. companies using the H-1B visa program properly do so by hiring highly educated, highly skilled, and very well-paid H-1B employees who fill very specific needs for the companies and their customers.  

As explained in this letter to the editor in the Washington Post, we should not punish innovative and successful U.S. companies who are committed to following our immigration laws simply because an extremely small number of businesses use the H-1B program improperly. 

Read the full Washington Post article "The H-1B visa program is not 'much abused'" here.  

Timothy R. Bakken

USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

BY USCIS, 3. APRIL 2017: U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.

Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

• Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
• H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and 
• Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system. 

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.

Existing H-1B Fraud Measures

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. USCIS refers many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

Further information

For more information about the new H-1B visa fraud and abuse detection initiative, visit the Combating Fraud and Abuse in the H-1B Visa Program web page.

For information about H-1B petition requirements, visit the USCIS H-1B webpage.

USCIS Reaches FY 2015 H-1B Cap

USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.   

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing. 

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

By USCIS, 7. April 2014.

SEE ALSO: 
Immigration lottery limits U.S. employers.
The H-1B programs impact on wages jobs and the economy.
Tech flips the script on immigration foes.
How immigration reform - or lack thereof - is hurting our economic competitiveness.