For the past several years, U.S. Citizenship and Immigration Services’ (USCIS) H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that turn to highly-skilled temporary foreign workers in specialty occupations to operate successfully. In newly-uncovered documents, it appears that instead of supporting small businesses that attempt to hire highly-skilled foreign workers, in many cases, USCIS discourages their success by subjecting them to a near presumption of fraud.
In July 2010, the American Immigration Council filed a lawsuit seeking the public release of records concerning USCIS fraud investigations in the H-1B program. Since 2008, USCIS has implemented new, more stringent procedures and has dramatically increased the frequency of unannounced work site fraud inspections, yet has kept the rules and guidelines related to the review process secret.
This trend is confounding given the administration’s vocal recognition of the important contributions immigrants make to small businesses in the United States. Through programs such as the Entrepreneurs in Residence Program, USCIS has partnered with business experts with the stated goal of simplifying the visa process for entrepreneurs by ensuring it is “clear, consistent and aligned with business realities.” However, at the same time the agency has erected hidden roadblocks that make it difficult for small and emerging businesses to participate in the H-1B visa program.
The H-1B program is visa program for high-skilled workers to work temporarily in the United States in specialized fields, such as marketing, business development, science and engineering. The program should help small businesses grow. But, documents released by the Department of Homeland Security (DHS) in response to the American Immigration Council’s lawsuit under the Freedom of Information Act (FOIA) suggest that the agency’s implementation of the program sometimes impedes business growth.
The documents reveal that the agency targets small businesses that participate in the H-1B visa program for increased scrutiny and fraud investigations precisely because they are small and emerging. According to fraud referral sheets, a fraud investigation may be triggered when a business asks for an H-1B employee if the business has a combination of the following characteristics: 1) a gross annual income of less than $10 million, 2) fewer than 25 employees, or 3) has been in business for fewer than 10 years.
In addition, the recently-disclosed guidance exposes USCIS’s dated perceptions of business practices. Relying on an outdated and statistically insignificant fraud report from 2008, the “H-1B Benefit Fraud & Compliance Assessment,” the agency has identified a number of “position fraud indicators” specific to small businesses. These positions include marketing research analysts, budget analysts, and public relations managers. The reality is that small, emerging businesses that hope to grow need these positions. Yet, because the small business seeks to fill these positions with H-1B workers, in the course of the visa process, the business may be required to answer an onerous “Request for Evidence” (“RFE”) from USCIS asking for extremely detailed information that is often difficult or impossible to obtain. The business also may be subjected to unannounced workplace visits. Despite doing their best to overcome these added burdens, the FOIA documents indicate that many visa petitions filed by legitimate small businesses are presumed fraudulent and unjustly denied.
If this double standard for small businesses continues, this Administration will fail to realize what should be its overarching goal for all visa programs: the creation of policies that are “clear, consistent and aligned with business realities.”
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