Visa Lawyer Blog

The H2B seasonal visa is considered to be the most abused type of visa. Typically workers coming on this visa are from low economic background and often uneducated. In many cases, employers can file for many workers on one petition, making this a lucrative business for fraudulent recruiters and agencies. The recent change in the regulations of the H2B visa (mainly barring recruiters from collecting fees), should change the program for the better, or so we hope.

Deborah Notkin, AILA’S past president recently came back from Mexico, meeting with Groups concerned with this program. Here is an excerpt from her Blog entry:

By far, everyone agreed that the problems began with “recruiters” who charged substantial sums (typically around $1,000) from each hopeful temporary worker and this money was rarely returned if there was not a visa available. This problem seems to reach epic proportions during a period of prosperity in the US when the H-2b visa cap of 66,000 workers doesn’t provide sufficient visas to fill needs. Under both Mexican law and now under the rules of the current H-2b regulations, recruiters are prohibited from charging fees to the prospective migrant workers but the judges found that enforcement needed to be stepped up.

H-1B Quota is still available for all employers. Employers who have not yet proceeded with new H-1B filing can go ahead now too as per their business requirements. After many years since the Cap of H-1B started, it is still available even after Sept. 30, 2009. As of this writing, there are still H1B cap numbers available, both in the advanced-degree and regular H1B quotas. This means that H1B petitions can still be filed for fiscal year 2010. These filings can continue, as long as the cap numbers are available.

We like to share that H-1B petitions can be filed throughout FY10, until the cap numbers are all depleted. Petition filed under the 2010 Cap after October 1, 2009, the start date of work requested can be immediate. Since October 1, 2009 has already passed, and the H-1B numbers are still available, filings may request an immediate validity date. Like earlier, the start date for H-1B work can be as much as six months in the future, depending upon the needs of an employer. Usually one has to start the H-1B Cap process 6 months in advance of the requested start of employment, employers were all doing so in order to increase their chances of obtaining one of the limited cap numbers. Thus, cases were filed at the beginning of April, requesting an October 1st start date. However, we are now beyond October 1st, and Cap numbers remain available, it is possible to pick a more desirable start date, ranging from immediate to six months in the future.

There is not much progress in cases filed in FY 2010 quota yet. However, there is sharp increase in filings. The regular cap increased by 1600 cases between the end of August and the end of September, for a total of 46,700 as of September 25, 2009. This reflects a higher rate of filings than in the prior few months which may be due to re-filings and fresh filing as per upcoming requirements. We will keep you posted on further developments.

Since the H1B filing season opened up in April 2009, cases were subject to greater scrutiny by USCIS. While we still have H1B visas available, the denial rate of filed cases is on the rise. I would say say that we have a 30% increase in RFE’s received this year. Recently, the USCIS started auditing employers and showing up unannounced at the work sites.

AILA’s Bob White and Mary Pivec, from AILA Verification and Documentation Liaison Committee provided an update on the recent audits.

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.

USCIS created the FDNS in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS’ budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition.

FDNS has previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved.

So how does the site visit work?

Unlike many of the site visits with the L-1, EB-1-3 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

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Recently the Department of Homeland Security (DHS) released an advance copy of the final rule rescinding the agency’s regulations regarding the legal obligations of employers receiving no-match letters from the Social Security Administration (SSA). The rule rescinds DHS final regulations previously issued on August 15, 2007 and October 28, 2008, entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” Publication of the final regulation in the Federal Register is expected within the next several days, and the rule will take effect 30 days after the publication date.

A no-match letter is a letter from SSA notifying an employer that the social security information submitted by the employer for certain employees does not match the information in SSA’s databases. The DHS no-match regulation had expanded the concept of “constructive knowledge” and had provided that employers could be held liable for the knowing employment of unauthorized workers where the employer failed to take sufficient steps to resolve a social security mismatch after receiving a no-match letter from SSA. The regulations also provided employers with a set of “safe-harbor” procedures after receiving a no-match letter. Employers who precisely followed those procedures would not be held liable for the knowing employment of any unauthorized workers based upon the receipt of the no-match letter.

However, as a result of a legal challenge filed by a number of labor and business organizations, DHS had been prohibited from implementing the social security no-match regulation, and SSA has not issued any no-match letters for several years. According to the preamble to the rule, DHS is rescinding its no-match regulations to focus its enforcement efforts on increased compliance through improved verification, including participation in E-Verify, the U.S. Immigration and Customs Enforcement’s Mutual Agreement Between Government and Employers (IMAGE), and other programs.