A lot happened on Monday, April 3, 2017. First, U.S. Citizenship and Immigration Services (USCIS) that it will be taking additional measures to “deter and detect H-1B visa fraud and abuse”. USCIS also announced the rescission of a field guidance memo from 2009. Finally, USCIS began accepting FY 2018 cap subject H-1B filings.
Increase in targeted USCIS Site Visits
Couched as “Putting American Workers First”, this announcement stated that USCIS will concentrate more on site visits, targeting their focus on H-1B petitioners and worksites where:
- USCIS cannot validate basic business information (likely through its VIBE system; for more information about VIBE see https://www.uscis.gov/working-united-states/information-employers-employees/employer-information/vibe/validation-instrument-business-enterprises-vibe-program);
- The petitioner is an H-1B dependent employer (for more information on H-1B dependency see https://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62C.pdf); and
- The H-1B employee will be working off site at another company’s location.
In the past, the site visits have been typically random events where a USCIS officer shows up at a work site and asks to meet with the beneficiary to determine if the filed petition was accurate or not. They would also typically meet with HR and/or the manager and request payroll records. While most of the site visits resulted in the USCIS officer finding that the petition was valid, for some cases it resulted in a request for more information in the form of a Notice of Intent to Revoke (NOIR). The employer was then given the opportunity to respond to what the officer deemed deficient upon audit.
These site visits are not new. USCIS has an Office of Fraud Detection and National Security (FDNS) which is charged with conducting audits as part of its Administrative Site Visit and Verification Program (ASVVP). For more information about the program, see https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/administrative-site-visit-and-verification-program. We have previously reported on these site visits:
- In 2013 (http://www.jackson-hertogs.com/uscis-expands-site-visits-to-l-1-visa-category/) and
- In 2009 (http://www.jackson-hertogs.com/uscis-to-conduct-25000-on-site-inspections/, http://www.jackson-hertogs.com/uscis-site-visits-audits-increasing/ and http://www.jackson-hertogs.com/jh/J9488.pdf).
What is new is that the site visits will be targeted even in situations where there is no prior evidence of fraud or abuse. Of particular concern is in the first prong—where the trigger is that USCIS cannot validate basic business information in the VIBE system which is tied to Dunn & Bradstreet. This particularly impacts smaller, newly formed companies that have not registered with Dunn & Bradstreet but are legitimately doing business in the United States. The focus appears to be towards consulting companies, but traditionally USCIS does not cast a narrow net. All employers will need to be braced for site visits. We suggest that HR communicate with reception and other staff members to be aware that any immigration officer should be referred to HR, and that HR develop a policy on whether to request participation of immigration counsel during the site visit.
Rescission of 1990 Guidance memo on H-1B computer related positions
The other announcement from USCIS was the rescission of the December 22, 1990 “Guidance memo on H1B computer related positions”. By rescinding that memo, USCIS has instructed examiners that not all computer programmer occupations require a bachelor’s degree. If entrance into a given occupation does not typically require a degree, then it is not an H-1B specialty occupation. The new memo advises that even if the Department of Labor’s Occupational Handbook suggests that a degree is required, USCIS is not compelled to find that the position requires a degree. In short, employers cannot rely on a statement in the Handbook stating that a degree is required. It is interesting to note that the new memo states that petitioners “must provide other evidence to establish that the particular position is one in a specialty occupation” as defined by the regulations.
What this appears to mean is that USCIS will likely issue more Requests for Evidence (RFEs) demanding evidence that sponsored positions require a degree. While this memo appears directed at computer programmers, it is possible that other computer-related occupations (including Software Engineer, IT Engineer, etc.) may be caught in this inquiry.
Both announcements were made just as USCIS began accepting cap filings for the year. We believe that we will see an uptick in RFEs for computer related occupations where predominant job duties include programming, as well as site visits for targeted H-1B dependent employers and H-1B employers with offsite employees.
Premium Processing Suspension
In March 2017, USCIS also announced that it was suspending premium processing service for all H-1B visa petition filings received on or after April 3, 2017. USCIS intimated that this suspension was designed to help them reallocate resources and bring down the processing times for regular cases. Given that processing times are variable and in some cases have extended to close to a year, there are additional ramifications of not being able to premium process H-1B petition. For instance, while employees with pending extension petitions may have valid work authorized status in the United States, they may be unable to renew their driver’s licenses or travel internationally until the petitions are approved. For change of employer petitions, individuals will need to rely on the portability rules to work for the new sponsoring employer and will usually not be able to wait for adjudication of a petition.
Immigration reform—is there any hope?
Our firm is completing work on yet another H-1B “cap season”, and we will now embark on the phase of clients waiting for the results of the H-1B “lottery”. It is remarkable that our economy and business decisions are made in the context of a lottery, but Congress has not taken action to improve our immigration laws in this area. As outlined above, rather than addressing employer needs, the government is creating more hurdles for legitimate employers who are not abusing the system. Our immigration laws have continued to restrict U.S. employers to numeric caps on H-1B visas and immigrant visas (green cards) set over twenty years ago, in 1990, and employers continue to contend with the anxiety that a valued candidate may not be able to join the organization, or may opt for other employment due to a delayed start date, or that a valued employee may have to be terminated, all because of the H-1B cap. In addition, some of you may have long-term employees who are increasingly unhappy with delays in immigrant visa processing, and who may therefore be considering other options outside the U.S.
A comprehensive reform of our immigration laws is an essential component to our economic health. You can convey this message to Congress using the American Immigration Lawyers Association (AILA) sign-on letter, available at www.jackson-hertogs.com/issues/AILA_2017-0316.pdf. If we have your permission to “sign you on” to this letter, please email us at office@jackson-hertogs.com by April 6, 2017.
In addition, one of our partners, Atessa Chehrazi, will be travelling to Washington D.C. to meet with our elected representatives on April 6, 2017 as part of AILA’s Lobby Day, to advocate for business immigration reform. We have developed a letter focused on H-1B and immigrant backlogs for these meetings, at www.jackson-hertogs.com/issues/H-1B_EB_Letter_2017-0403.docx. If you would like your letter hand delivered to your Congressional representatives or their legislative staff, please print, sign, and email your letter to office@jackson-hertogs.com by April 6, 2017.
Comprehensive immigration reform is a national priority, and we are happy to work with you in advocating immigration legislation that supports U.S. businesses.
