H-1B Temporary Worker Category under Increased Scrutiny and Attack
The H-1B temporary worker category allows U.S. employers to bring foreign workers with specialized knowledge to the U.S to work on a temporary basis. It can be an effective mechanism for U.S. businesses to address a shortage of professional workers, to secure cutting edge skills and needed expertise, or to simply hire the best and the brightest in order to obtain a competitive advantage. Although the H-1B program has built-in safeguards to ensure that wages and working conditions of U.S. workers are not adversely affected, there is no requirement to document the unavailability of qualified U.S. workers in order to successfully petition for an H-1B worker. However, with the downturn of the economy, it seems the H-1B temporary worker category has been under attack on an increasing number of fronts, including by the governmental agencies that are responsible for administering and regulating the program, leaving the impression there is a concerted effort being undertaken to discourage U.S. companies from employing foreign workers.
The Office of Fraud Detection and National Security (FDNS) was created in 2004 by U.S. Citizenship and Immigration Services (USCIS) to detect, deter and combat immigration fraud and to ensure that immigration benefits are not granted to persons who threaten national security or public safety. In the fall of 2009, FDNS initiated an assessment of the H-1B program. This effort has involved site visits, mostly unannounced, to the H-1B employer’s principal place of business and/or the H-1B nonimmigrant’s work location as listed on the H-1B petition, in order to verify information pertaining to H-1B petitions that have already been approved or are pending at USCIS. In these site visits, the FDNS officer, or an investigator who has been contracted by FDNS to conduct the site visit, arrives at a place of business armed with a copy of the H-1B petition and asks to speak with the employer representative who signed the petition. If that person is not available, the FDNS officer usually asks to speak with another employer representative, such as a human resources manager.
The FDNS officer will ask questions seeking specific information about the nature of the employer’s business, its locations and number of employees, and may ask for confirmation that the signature on the I-129 petition filed by the employer is genuine. The FDNS officer will then ask about the position that the H-1B nonimmigrant is performing, such as job title, job duties, work location, and salary. The FDNS officer may also ask to review a copy of the H-1B worker’s pay records, including the most recent paystub and Form W-2. Although this has not yet been reported, the FDNS officer could also ask to review the Labor Condition Application (LCA) Public Access file that H-1B employers are required to maintain for each H-1B employee. After speaking with the employer representative, the FDNS officer sometimes requests a tour of the employer’s facility and will normally request to interview the H-1B nonimmigrant. During the interview with the H-1B worker, the FDNS officer will ask about the position that he or she is performing, his or her academic background and previous employment experience, as well as other information about the H-1B worker that may have been included in the H-1B petition. After speaking with the H-1B worker, the FDNS officer may also request to speak with a co-worker or manager to ask them about the position the H-1B nonimmigrant is performing. The site visit usually lasts less than an hour and, provided no evidence of fraud is uncovered, the employer is not likely to hear anything further following the visit.
Site visits, however, do not appear limited to cases in which USCIS adjudicators suspect fraud. Rather, it has been reported that the Vermont Service Center transferred approximately 20,000 cases to FDNS as part of the H-1B assessment program. Assuming the other service center (California Service Center) which processes H-1B petitions transfers a similar number of cases, FDNS officers may be paying visits to a significant number of H-1B employers.
There have also been numerous reports that H-1B workers have recently been subject to increased scrutiny by U.S. Customs and Border Protection (CBP) when entering the U.S. For instance CBP inspectors at the Newark airport have subjected certain individuals, particularly Indian nationals seeking entry in H-1B status, to extensive questioning about who they worked for, how their pay was computed, who paid their salary, their job duties, etc., and, in some instances, individuals were subjected to expedited removal and visa cancelation. CBP headquarters has stated that some of these cases involved individuals who worked for companies under investigation by U.S. Immigration and Customs Enforcement for fraud, but also confirmed it was screening all employment-based visa holders entering the country to determine admissibility and to ensure compliance with entry requirements. CBP at the Newark airport further confirmed it has instituted a policy of conducting random checks for returning H-1B, L-1 and other employment-based visa holders to determine whether there are discrepancies with previously filed petitions.
Practitioners have also reported increased scrutiny of H-1B workers at various U.S. consular posts, particularly in India. Officials have questioned the bona fides of an approved H-1B petition and requested information, including information already reviewed by USCIS in adjudicating the initial petition. Many of these requests seem to be fishing expeditions asking for a host of repetitive and oftentimes irrelevant information, which, in effect, creates a “paper wall” that must be overcome before an applicant will be issued an H-1B visa and delays the arrival of the H-1B worker.
USCIS has also recently targeted the H-1B category by issuing a policy memorandum imposing new extra-regulatory requirements on the employer-employee relationship, the types of activities in which H-1B workers can engage, as well as the types of enterprises that can petition for H-1B workers. Although the memo seeks to target the computer consulting industry in particular, it impacts a number of other industries that place employees at third party worksites and introduces a new concept prohibiting the filing of H-1B petitions on behalf of individuals who have an ownership interest in the petitioning H-1B entity, even where the entity is a corporation. We have already begun to see the issuance of new requests for evidence on pending and newly filed H-1B petitions involving these issues.
So what is an employer to do? Here are a few fundamental guidelines to keep in mind:
• When filing an H-1B petition, carefully review the petition and supporting documentation to make sure everything is truthful and accurate;
• If there are material changes in the H-1B worker’s employment, contact legal counsel to discuss what steps need to be taken and whether it is necessary to file an amended H-1B petition;
• Make sure all paperwork/documents that are required to be maintained are properly completed and updated. Employers should retain complete copies of all of their I-129 petitions and supporting documentation in confidential files maintained by designated company officials;
• Have a protocol in place in the event of a visit by USCIS or other government agency requesting information about the employment of workers. Investigators should be immediately referred to knowledgeable employer representatives and legal counsel should be promptly contacted. Employers should request the name, title, and contact information of the investigator and should not speak with government agents or contractors without a witness being present; and
• Employees should be advised and properly prepared when traveling abroad, applying for a visa at a U.S. consulate or entering or returning to the U.S.
Employers should not be intimidated from utilizing the H-1B category. It is also important for employers to let their congressional representatives know how important the H-1B category is to their businesses and to push back against the anti-immigrant forces which are intent on eliminating any type of immigration, even legal immigration that is vital to this country’s economy and ability to compete in the competitive global marketplace.