An immigration advocacy organization has discovered documents it claims show that U.S. Citizenship and Immigration Services (USCIS) maintains a double standard between small and large businesses petitioning for H-1B temporary worker visas. According to the group, USCIS places far greater scrutiny on small businesses and subjects them to a higher rate of fraud investigations and a near-presumption of fraud, often based on outmoded business models. Immigration authorities have publicly supported the role of immigration in small business, but these findings suggest that the administration of the H-1B program may need serious reform.
Freedom of Information Act Request and Lawsuit
The American Immigration Lawyers’ Association (AILA) submitted a series of Freedom of Information Act (FOIA) requests to USCIS in 2009 seeking documents related to adjudications and fraud investigations regarding H-1B petitions. The Legal Action Center of the American Immigration Council (AIC), on behalf of AILA, filed suit in federal court to challenge USCIS’s withholding of certain documents. Am. Immigr. Lawyers’ Assoc. v. U.S. Dep’t of Homeland Sec., Case No. 1:2010-cv-01224 (D.D.C., July 20, 2010). The court granted partial summary judgment for the AIC in March 2012, leading to further production.
Rise in Fraud Investigations
Unexpected USCIS fraud inspections of H-1B petitioners have increased in frequency since 2008. The documents produced by USCIS reportedly show that the agency has put new procedures and guidelines in place regarding fraud investigations that can have the effect of interfering with business growth by increasing the expense, time, and burden of H-1B petitions. USCIS has stated that it supports job creation, so much so that it has developed the “Entrepreneurs in Residence” program, with the goal of “increas[ing] the job creation potential” of immigrants and small businesses.
Burdens on Small Businesses
The AIC describes a system that targets small businesses that meet certain criteria, often regardless of whether the agency has cause to suspect fraud has occurred. These criteria focus on a business’ income, number of employees, and amount of time in business. Specifically, H-1B petitions by companies with gross revenue of under $10 million per year, fewer than twenty-five employees, or less than ten years in business may trigger fraud investigations by USCIS.
Some of the indicators used by USCIS to identify fraud, according to the AIC, are outdated and fail to understand the present realities of many small businesses. Certain job positions flagged for review, for example, are considered suspect by USCIS but are often essential to a modern small business’ success. Positions like public relations manager or marketing research analyst are increasingly important, given social media and other technologies, but they do not fit neatly into the guidelines USCIS maintains for H-1B petitions. Businesses seeking to obtain H-1B visas to fill these positions may face burdensome requests for documentation and other evidence from USCIS, or even surprise worksite inspections. USCIS simply presumes that many small business H-1B visa petitions are fraudulent, possibly leading to the denial of many meritorious petitions.
We have noted before that federal immigration authorities have made the H-1B petition process increasingly difficult in recent years. H-1B visaholders, by definition, do not take jobs away from American citizens, so the reason cannot be any sort of protectionist mindset. The government’s position is hurting small businesses that, given their willingness to submit to the H-1B petition process in the first place (see our previous blog post Immigration, Uncle Sam & Extortion), likely need the assistance of highly-skilled immigrant workers. It may be doing more than just hurting these businesses though. Since H-1B visaholders often fill in the gaps in the American workforce in STEM (science, technology, engineering, and math) areas, USCIS’s practices may hurt the U.S. economy on a larger scale.
More Blog Posts:
The Government’s War on H-1Bs, ImmigRantings, October 11, 2012
Business Immigration, ImmigRantings, May 14, 2012
Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012
Photo credit: ‘Visa 2’ By EGUprojects (Own work) [CC-BY-SA-3.0], via Wikimedia Commons.