Posts Tagged ‘H-1B’

What Happens When USCIS Breaks The Law?

Sunday, January 31st, 2010

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (”APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA.

USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. Now, however, with the two newest “Neufeld Memos” the USCIS has simply gone too far.
The Neufeld memo on the EB-5 program, essentially makes that job creation program unworkable, and the Neufeld Memo on the H-1B program, literally changes decades of established policy on the most important visa allowing U.S. companies to hire foreign nationals. The USCIS, without any input from the users of the program (really, there was no input), has broken the camel’s back. Absent an immediate withdrawal of these memos, it is quite clear that in order to keep these programs workable, additional action will have to be taken. AILA USCIS HQ Liaison Committee has sent to USCIS Chief Counsel Roxana Bacon a detailed letter explaining how the USCIS has fundamentally eviscerated the H-1B program, and has clearly violated the APA. I strongly urge you to read it, to understand the depths to which the USCIS has delved in its war on the H-1B program.
I have no doubt that the USCIS’s intention in issuing these law-altering memos is to somehow curry favor with certain Senators who share a concern about the H-1B and the EB-5 programs, in regards to the fraud that exists in them. No one disputes that fact that some bad users have abused this program; some intentionally, others ignorantly. But, changing the rules to prohibit the legal and correct use of the program to catch bad actors is not the way to make a program work effectively. Enforcing existing laws against fraud, and not classifying legitimate industries as evil, is the way to go about cleansing the program of inappropriate users. The USCIS’s own failure to police the programs cannot justify what they have just done.
Here is a simple request to Director Mayorkas. When the your agency is going to issue a major policy change, perhaps you might want to ask users of your “service” whether what you want to do accomplishes its true purpose. I can assure you, that these two recent memos do not accomplish what you think they do, nor what you may have been told they will do. There is only one solution to the crisis caused by the recent pronouncement. To paraphrase President Ronald Reagan: Mr. Mayorkas, Withdraw Those Memos!

H-1B Investigations–USCIS Run Amok!

Friday, August 7th, 2009

As many of our members know, the USCIS is like a Jekyll and Hyde creation. With one face, USCIS happily grants benefits, issues approvals, and welcomes people as citizens. With the other face UCSIS distrusts everyone, believes there is a lie on every application, and looks for ways to disqualify clearly qualified applicants. As you all know, this is not an exaggeration. It is true of an agency still steeped in the “Culture of No.”
Many of you remember the Religious Worker “Benefit Fraud Assessment Teams” that went out to make sure that the Catholic Church was actually still in business. The ability of the USCIS to conduct effective program reviews, rather than just sticking with its core strength of adjudications is rather dubious, to say the least. Recently AILA shared some information about a “new” benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the “fraud fee” in the H-1B program. This new program involves the hiring of a private contractor to send “investigators” out to conduct 25,0000 site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition. Yesterday, a client of mine received such a visit, and thanks to a terrific Human Resources Professional, we have a brief report of the scope of this style of fraud “investigation:”

The investigator came back yesterday. Her name was ______________. She indicated that she was a contractor hired to conduct these investigations (this is similar to the investigators that conduct the background investigations for government clearances). She had a badge with a picture.

She first met with me (HR REP). She asked me some very basic questions about the company, what we did, how many employees we had, work hours, office locations, etc. She also asked me how many employees we had on H1Bs, how many we had sponsored for permanent residency and how many total of our employees are legal permanent residents. It was hard to answer these off the top of my head. She said approximate numbers were ok even after I offered to get an employee list that I could look at to get her the exact numbers. She then asked me a couple of questions about the H-1B employee – what he did, his salary, work hours and start date. She asked me for ID so she could verify that I was who I said I was and she asked to see a W-2 or pay stub. I didn’t have either so I showed her the payroll register from our last payroll which satisfied her requirement. She then met with the foreign national employee for a couple of minutes. He said that she asked him about his job duties, work hours and salary. She also checked his ID. She asked me for a quick tour around our offices and left.

It was a pretty quick process. None of her questions were hard to answer – hopefully we passed. She was very nice and professional. I did apologize to her that I missed her when she came over the first time and she said that they want their visits to be “surprise” visits so unfortunately this is a problem they have to deal with.

The foreign national employee did tell me that he asked her if he was selected randomly and she indicated that he wasn’t – I guess they are going to be doing this for everyone.

You can see from this brief report that we as attorneys have yet another issue with which to deal. Now we must advise our clients of these waste of time investigations not targeted to find those employers or employees abusing the H-1B program, but rather designed to throw as much enforcement as the government cannot afford at a problem that does not exist in order to justify jobs and and the expense of a program that should be more effectively and efficiently run. Just what we need in the middle of an economic downturn, more government regulators! Where is John Galt when you need him?
What makes the expenditures of these funds in such a random way even more outrageous is the recent report noting that the number of affirmative filings to USCIS has decreased by almost 50% year over year at the USCIS. Because USCIS’s budget is entirely dependent on fees paid by users, the question becomes this: why is USCIS spending money on a program “looking” for problems when they would be better off using their resources to solve the problems they already have as an agency and better manage the extant operations that need to run more effectively.

Where, O Where Have My High Skilled Immigrants Gone?

Tuesday, March 3rd, 2009

Ewing Marion Kauffman Foundation released a Study today that indicates placing limits on foreign workers in the U.S. is not the answer to the country’s rising unemployment rate and may undermine efforts to spur technological innovation.   You have to ask yourself, “Is anyone surprised by this?”  I mean come on. What kind of person actually believes that by STOPPING advanced degreed university graduates from coming to the United States the United States will be better off?  I mean, besides the folks in Congress!

The study by Harvard professor Vivek Wadhwa titled America’s loss is the world’s gain: America’s New Immigrant Entrepreneurs, Part IV, researchers surveyed highly skilled immigrants who had studied and/or worked in the United States and subsequently returned to their home countries.

“A substantial number of highly skilled immigrants have started returning to their home countries in recent years, draining a key source of brain power and innovation,” said Robert E. Litan, vice president of Research and Policy at the Kauffman Foundation. “We wanted to know what is encouraging this much-needed growth engine to leave our country, thereby sending entrepreneurship and economic stimulus to places like Bangalore and Beijing.”

The study found that “Immigrants historically have provided one of America’s greatest competitive advantages. Between 1990 and 2007, the proportion of immigrants in the U.S. labor force increased from 9.3 percent to 15.7 percent, and a large and growing proportion of immigrants bring high levels of education and skill to the United States. Immigrants have contributed disproportionately in the most dynamic part of the U.S. economy—the high-tech sector—co-founding firms such as Google, Intel, eBay and Yahoo. In addition, immigrant inventors contributed to more than a quarter of U.S. global patent applications. Immigrant-founded U.S.-based companies employed 450,000 workers and generated $52 billion in revenue in 2006.”

Come on Congress, lets get out heads out of the sand, stop playing games with who is to blame in this economic crisis and THINK your way out of it.  Expanding U.S. employers’ ability to bring in the best and brightest from around the world, AND treating this talent as they should be treated, will go a long way to fixing our economic malaise.


H-1Bs and US Workers–The Banks and The Bailout

Monday, February 2nd, 2009

The Associated Press ran an absolutely poorly researched piece on H-1B visas and the Banks receiving Bailout money from the Federal Government on Sunday.  The article implied that as the Banks were taking bailout money they were simultaneously firing US workers and hiring cheap foreign labor.  After I finished laughing out loud, I began to weep.  I was stunned that a veteran reporter at the AP would be willing to draw this conclusion from the biased numbers drawn up by a group opposed to immigration in general and to H-1B visa holders specifically.  The piece makes no effort to talk to an independent source, or to check the information against publicly available data. 



The article notes that the banks benefiting from bailout monies “requested visas for more than 21,800 foreign workers over the past six years for positions that included senior vice presidents, corporate lawyers, junior investment analysts and human resources specialists. The average annual salary for those jobs was $90,721, nearly twice the median income for all American households.”   Unfortunately, that statement simply is not true.  Even more telling is this quote from the article “During the last three months of 2008, the largest banks that received taxpayer loans announced more than 100,000 layoffs. The number of foreign workers included among those laid off is unknown.” 



We have to ask, once we think about this:  Which banks?  How is the layoff number related to this article, if we do not know how many H-1B workers were laid off, perhaps the banks laid off all the H-1B workers?  Then what would be the point of the article?



Now, taken on its face, a normal person (someone who does not deal with H-1B visas all day long) would say, “That is a crime!”  “We should take our bailout money back!”  But this article is based on so little accurate information that it screams for a deeper examination. First, the “21,800 foreign workers” over the past five years is simply not true. This is either stated out of ignorance or with an intention to misstate the truth,  The 21,800 number ACTUALLY refers to Labor Condition Applications that were filed by these banks with the Department of Labor, NOT the number of H-1B petitions filed by the Banks with the U.S. Citizenship and Immigration Service (the reporter fails to actually disclose how many and which banks in particular were included in this fanciful number). 



Supposing the reporter knows how to count, then what is a Labor Condition Application? It is a precursor document to the H-1B and MUST be filed each time an H-1B visa employer has an H-1B worker who MOVES locations, CHANGES jobs, EXTENDS his visa OR files a New H-1B petition.  It does NOT reflect 21,800 visas!  Misleading, heh. The reality is that the number MIGHT BE closer to 6,000 H-1B visa applications over 6 years for ALL banks operating in the United States, even owned foreign banks). But, we are not given this information in the article, either because it would have supposedly been too difficult to obtain the actual number of H-1B workers approved in any given year for these banks, or because the number was perhaps unavailable.  In fact, the reporter said this: “It is unclear how many foreign workers the banks actually hired; the government does not release those details.”   Wrong!



Ten minutes. That is the amount of time it took to get this information.  All this reporter had to do was Google “top H-1B employers” to see who actually is petitioning for H-1b workers.  In 2007, of the top 200 H-1B employers, the first bank listed is Citibank (54) (387,000 employees), with 322 H-1B Visas approved;  Bank of America (95) (210,000 employees) had 236 H-1B visas approved; HSBC Bank USA (125) (335,000 employees worldwide) had 203 H-1B visas approved;  and Deutsche Bank (154) (78,000 employees worldwide) had 170 H-1B workers approved.  There are no other banks in the top 200 users of the H-1B program.   So, less than 1/10 of one percent of the employees of these companies in 2007 was on an H-1B? Can we say drive-by journalism? Or, perhaps, there is an ulterior motive here.  It appears the old playbook is coming out:  Economic downturn, need to distract from the problem, blame the foreign workers! Hike!  Let’s face reality.  H-1B workers actually create jobs for U.S. citizens. 



The reality is that until Congress gets its act together, does a proper study on H-1B visas numbers, comes to agreement on a appropriate amount of H-1Bs, tied to an employment rate rise or fall, we will keep allowing our elected representatives and those with an agenda against immigrants to demagogue an issue rather than deal with real problems.



A few key points to keep in mind:



1.  H-1B petitions track the economy. When hiring is down, the number of H-1B petitions goes down, and vice versa. The program is self-adjusting when the economy goes down, but there is no corresponding escalator when the economy improves – that’s the real problem.

2.  According to the Bureau of Labor Statistics, there remains a shortage of native born students graduating with advanced degrees to fill highly specialized positions, especially in the scientific, technological, engineering and mathematic fields and these fields are projected to grow and be our future.  Our own innovative industries need to have access to foreign professionals who have these skills and expertise.

3.  In economic downturns like today, there are specialized needs and skills sets in demand that will result in new H-1B petitions. At their highly-skilled level, you can’t fill professional positions without the necessary expertise and training.  Employers rely on the H-1b visa to retain highly educated professions in the US and to keep us competitive in the global market.  We are competing for the best and brightest with other countries that actually have the foresight and understanding to streamline work visas and immigration.

4.  As the economy returns, the US will need access to the talent and skills that foreign nationals (many of whom were educated in the US) can bring. It’s short-sighted and counter-productive to artificially limit access to this talent in the future. This is the law reform that companies have been advocating for and deserve to have enacted.



If you believe Congress needs to address the H-1B shortfall, and understand the need for United States employer to have the flexibility to hire those key foreign national workers that create jobs for United States Citizens, send a message to your Congressman and Senator today. It takes only 30 seconds and does make a difference.