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Feds considering changes to H-1B application process in wake of report

USCIS weighs H-1B reforms after finding fraud, 'technical violations' in 21% of reviewed cases

October 10, 2008 12:00 PM ET

Computerworld - A report by the U.S. Citizenship and Immigration Services that found evidence of forged documents, fake degrees and shell companies being used in H-1B applications will likely lead to increased scrutiny of the visa petitions if the USCIS implements some of the steps it is now considering.

A USCIS spokesman said today that the agency is weighing a series of reforms to the H-1B application process, including the use of "independent open-source data" to obtain information about visa seekers or the companies that file the petitions on their behalf. For instance, USCIS officials could check petitioning companies against commercially available records to make sure that they are legitimate businesses.

The USCIS is also looking at implementing a risk assessment program for applications "based on objective criteria relating to fraud indicators," the spokesman said. That would enable the agency to give greater scrutiny to H-1B petitions that raise flags during the review process.

Other options under consideration include modifying the H-1B "evidentiary requirements" and revising the forms that employers use when filing applications, according to the USCIS spokesman.

The report, which was finalized in September and publicly released (download PDF) Wednesday by Sen. Chuck Grassley (R-Iowa), said that 21% of 246 H-1B applications reviewed by USCIS staffers contained either outright fraud or "technical violations" of federal laws and regulations. The findings mean that thousands of employers may be violating the rules, some willfully.

In addition to finding fake information in applications, the USCIS investigators discovered on visits to work sites that some employers weren't paying prevailing wages to H-1B holders. In other cases, the report said, companies had "benched" visa holders when work wasn't available for them, or had them doing different jobs than the ones that were listed on their H-1B applications.

Yesterday, Grassley followed up his release of the report by sending a letter to top USCIS officials. Among other questions, he asked whether the employers who were found to have violated the H-1B rules will "be held accountable or referred to the Department of Justice for prosecution?"

Grassley also voiced frustration over what he said were lengthy delays in producing the report, which was based on an examination of a random sample of the nearly 97,000 H-1B applications filed in late 2005 and early 2006. In addition, he disputed the report's classification of some of the problems found by the USCIS as technical violations. "Blatant disregard for the law is not a 'technical' violation," Grassley wrote.

In a statement on Wednesday, Grassley — who is an ardent H-1B critic — said that the USCIS report "validates the major flaws" in the visa program. "It's unacceptable," he added, "that these fraudulent activities are slipping through the cracks when there is so much legitimate demand for H-1B visas."

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