Visa Lawyer Blog

A lot has been said about this story, and it seems the wrong point keep coming back. The workers is not able to find work because of the H1B visa. This is a myth and a wrong statement.

This is the story to recap. Two days after Obama talked with the wife of the engineer during an online town hall and offered to take a look at her unemployed husband’s resume, the wife said the president has followed through.

The wife told The Associated Press that she got a call from a White House deputy chief of staff, who told her Obama had made a personal point of making sure the matter was taken care of. The deputy said the resume was sent to contacts in the Dallas-Fort Worth area where the couple lives.

The husband Darin has been contacted by several recruiters, and the wife said she’s grateful.

But the wife a republican, said that may not be enough to get her vote unless Obama also improves some of his job policies.

“Just because he’s able to send a resume out, that’s not going to be a vote factor,” the wife said.

“We’re just one American,” she said. “There are thousands of Americans just like my husband with no job.”

The wife wants Obama to look at limiting the number of visas going to high-tech workers from foreign countries, the issue she raised with him in a forum hosted by Google Plus.

It is very easy to blame foreign workers and the H1B visa when times are tough. People often find excuses and reasons for not being able to find work, the H1B program is a convenient target.

In an updated article about this story the engineer is still not employed and the calls from recruiters and employers stopped as the media attention faded. It seems that he had some good offers but refused to relocate for the job. Who is to blame for this, sure the H1B program. How about being too picky to move?

Crystal Williams from AILA leadership Blog had a nice take on this issue:

Sometimes you read an article and think “something doesn’t quite follow here.” An April 7, 2012 article in the Fort Worth Star-Telegram titled “Fort Worth engineer who got Obama’s attention still doesn’t have a job” is one such article.

The article lays out a tale with which one can readily sympathize: an engineer loses his job in the midst of the Great Recession, and remains out of work three years later. He receives expressions of interest from companies and recruiters all over the country, but cannot pursue them because a custody agreement requires he stay in the area where he now lives. It’s an impossibly tough dilemma: wedded by a vitally overarching family commitment to a geographic location where your skills are not in demand, and unable to pursue opportunities in places where demand for your skills does exist.

But the article fills in some more information. The engineer’s job loss was being used by immigration opponents to argue that H-1B specialty occupation professionals should not be allowed into the United States because here is an engineer who needs a job. This was raised with no less than the President of the United States in a video chat.

This chat exchange received considerable publicity, and immediately the engineer was being contacted by potential employers from all over the country. Alas, none of these employers were in the North Texas area. And the engineer couldn’t leave the area. So the calls have stopped and the engineer stays unemployed.

But here’s what doesn’t follow. The article goes on to quote Senator Grassley and the engineer’s wife as saying that the engineer is out of work because of foreign nationals on H-1B visas. The fact that the engineer cannot go where the jobs are does not seem to be considered a factor. Leaping over barrels of facts to a conclusion that doesn’t follow from the facts, the fault is placed at the feet of foreign-born professionals who will go where the jobs are.

In those leapt-over barrels is the acknowledged fact that employers all over the country were beating down this engineer’s door. Why would they do that unless there are jobs available in some fields and employers wanting to fill them with U.S. workers who have the right skills? But these employers cannot pull up entire operations (and lay off their existing workforce) in order to move to the locale of a single person; the person needs to move to the job. If the person cannot move to the job because of a family obligation, that is to be respected.

But no one should blame “the foreigners” for it.

So we suggest to learn the facts about the H1B program before blaming hard working foreign workers.

We just obtained this information based on reports from the California Service Center, Laguna Niguel, CA, on April 5, 2012, that 22,323 cap-subject H-1B petitions have been received as of April 4, 2012. Approximately 25% of these cases are for U.S. advanced degrees. According to USCIS, the number of filings received in the first few days of the H-1B season is almost double the number of filings received by USCIS during the same time last year.

We will keep you posted any new H1B case filers, better hurry up!!!

Administrative site visits of U.S. employers in connection with H-1B petitions are becoming increasingly common as USCIS is trying to preserve the integrity of H-1B program in response to the USCIS H-1B Benefit Fraud Analysis report of September 2008. This article is presented by Attorney Ekaterina Powell from our office.

Administrative site visits are conducted as part of USCIS anti-fraud initiative. The main goal of a site visit is to verify the beneficiary’s H-1B employment with the petitioning entity. Employers are not provided any notice in advance of the site visit, which may be a problem for unprepared employers who do not know what to expect and how to prepare for the site visit.

In the recently released California Service Center Stakeholder Engagement Meeting on November 8, 2011, CSC points out that, in connection with an administrative site visit, petitioners should be prepared to answer any questions related to the terms and conditions of H-1B employment.

However, such broad latitude in the line of questioning given to USCIS inspectors creates certain problems for the employers who may misunderstand the questions and unintentionally give responses that may lead to H-1B petition’s revocation and adversely affect the company. The employer may request the presence of an attorney at the time of the site visit to avoid such confusion and misunderstandings.

So, what can an H-1B employer expect during a site visit?

Normally, administrative site inspections typically inspect the work location listed on the I-129 petition. In addition to speaking to a company representative (typically the signatory of the petition or the listed contact person) and/or the beneficiary, the inspector may also ask to inspect documents related to the petition and take photos of the worksite.

The inspector may question the employer’s representative on his/her knowledge of the beneficiary’s job duties, hours of work, salary, length of time the beneficiary was employed at the facility, locations of employment, etc.

The site inspector then may ask to speak to the beneficiary directly and will note any discrepancies in the employment details as described by the beneficiary and the employer’s representative.

The inspector may request to see the paystubs or other proof of wages paid to the employee and the employer’s otherwise compliance with the approved H-1B petition.
The main issues arise when the beneficiary cannot be found at the job location specified on the I-129. This situation raises several concerns on the part of USCIS: USCIS may not verify whether the beneficiary is still employed by the petitioner, whether the beneficiary is employed in a specialty occupation as stated on the H-1B petition, and whether the beneficiary is actually paid the required wage.

In such situations, USCIS may issue a Notice of Intent to Revoke an approved H-1B stating that the petitioner has violated the terms and conditions of employment and of an approved H-1B petition. Therefore, CSC advises petitioners who anticipate that the beneficiary will work off-site to provide a detailed itinerary with the H-1B petition with a list of employment work sites.
Another common issue raised in administrative site visits is payment of the required wage to the H-1B employee. Inquiries of the inspectors, however, may be confusing at times. For example, employers report that during the site visits the H-1B employees are asked whether they “paid for the H-1B.” CSC stated that questions regarding payment of fees are asked by site inspectors and deductions from the beneficiary salary to pay fees assignable to the employer can be considered a red flag.

However, the form of the question itself, i.e. whether the employee paid for the H-1B may be misleading. Without a further clarification of what fees exactly are implied, the employer may receive a Notice of Intent to Revoke the approved H-1B even if the employer acted in full compliance with the H-1B requirements and made only authorized deductions from the H-1B employee’s wages.

Responding to the NIR and explaining that the employer is actually in compliance with the H-1B rules is very time-consuming and costly. Therefore, before USCIS implements further training of its site inspectors, employers should be proactive and engage the services of a competent attorney at the time of a site visit to avoid unnecessary expenses in the future.
If there are any inconsistencies between the information gathered through a site visit and the information entered on I-129, USCIS may issue a Notice of Intent to Revoke (NIR) the approved H-1B petition. Due to delays in administrative processes, the NIR may be issued 6 or more months after the actual site visit.

Often times, NIR is a surprise for the H-1B employer who was sure that all the answers given as part of the site visit were in line with the H-1B petition.
In addition, by the time USCIS issues NIR, many employers no longer remember the questions or the answers given during the site visit, and it becomes hard to ascertain the extent of the issues that need to be addressed and to prepare the appropriate responses to NIR.
Therefore, we recommend our clients who had administrative site visits to outline all the questions the inspector asked and all the answers given by the employer immediately after the visit to make things easier in the future.

Failure to respond to NIR or inability to rebut USCIS allegations in NIR may have significant negative impact on the company. USCIS may revoke the approved H-1B petition and may even report serious wage and hour violations or other violations of H-1B requirements to other government agencies, such as Department of Labor, for example. The repercussions of H-1B violations can adversely affect the ability of the employer to hire future H-1B employees and may prevent business growth.

Therefore, all H-1B employers are reminded to set up an effective H-1B compliance system, perform periodic internal audits of the H-1B files and Public Access Files, follow proper procedures in case of any material changes in employment, employee relocation to another worksite, or employee termination in order to be prepared in case of an audit or a site visit.

If you are an H-1B employer and you do not fully understand your obligations as per the H-1B program or if you need help in setting up an effective H-1B compliance system, contact our office.

According to the National Foundation for American Policy, USCIS dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States. Data indicate much of the increase in denials involves Indian-born professionals and researchers. U.S. Citizenship and Immigration Services adjudicators have demonstrated a capacity to keep skilled foreign nationals out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence (RFE), despite no change in the law or relevant regulations between 2008 and 2011.

Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States – beyond the reach of U.S. Citizenship and Immigration Services adjudicators and U.S. consular officers.

Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or
gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.

Here are some of the findings:

- Denial rates for L-1B petitions filed with USCIS, which are used to transfer employees with “specialized knowledge” into the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010 and 27 percent in FY 2011. In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.

- Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.

- Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. L-1A visas are used to transfer executives and managers into the United States.

- Along with increased denials have come skyrocketing rates of “Requests for Evidence” or RFEs, which are used by USCIS adjudicators to obtain more information in lieu of making an immediate decision on a petition. Employers note that simply the act of an RFE can result in months of delays, affecting costs and potentially delaying projects and contract performance.

- The Request for Evidence rate for L-1B petitions (to transfer employees with specialized knowledge) rose from 17 percent in FY 2007 to 49 percent in FY 2008, and, as noted, reached an astonishing level of 63 percent rate in FY 2011. As recently as FY 2004, USCIS adjudicators requested additional evidence for L-1B petitions in only 2 percent of the cases. There appears to be no reasonable explanation for the rate of Request for Evidence for L-1B petitions to rise from 2 percent to 63 percent in just 7 years.

- The Request for Evidence rate for L-1A petitions (to transfer managers and executives) increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.

- For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for H-1Bs was 26 percent.

Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability. The data in the report include only petitions at USCIS, not decisions made at consular posts.

We are very concerned about the date released in this report, and as lawyers processing numerous L1 and H1B cases, can attest that the findings are correct and are even worse. Some of the denials we have seen were reported back to AILA for further follow up. We hope that 2012 will be a better year, but this is still hard to believe.