The H-1B visa and permanent residency card, or green card, programs are under a new assault, and not from its usual opponents in Congress and elsewhere, according to immigration attorneys. The program now appears to be under attack from worker bees in the United States Citizenship and Immigration Services bureau and other regulatory agencies, who have dramatically increased the amount of paperwork required from employers looking to hire workers with green cards or H-1B visas.
Immigration attorneys say the primary tool used by the regulators is what's called a request for evidence. The USCIS and other agencies can make such requests of those who apply for an H-1B visa or permanent residency application and renewal. In recent months, use of the tool is becoming more far-reaching, asking for information such as corporate payroll records, zoning maps and even building fire-safety plans, they added.
The document requests by the U.S. Citizenship and Immigration Services in particular are "on the border of harassment," said Crystal Williams, co-director of the American Immigration Lawyers Association. The agency is "attempting to build a barrier, to make it as difficult as it possibly can be to get a visa." The group is now gathering evidence to make a case that the government is overstepping its authority. The request for additional documents has "gone out of control," said Sam Shihab, an immigration attorney based in Washington. H-1B employers are now "guilty until proven innocent," he added.
He noted that he took a photograph of one stack of supporting documents that stood four inches high and sent it to a client. He provided details of some of the documents sought by the government in his visa law blog.
Shihab claims that the government is particularly profiling IT firms that hire mostly Indian nationals.
Suhi Koizumi, a special counsel at Buchalter Nemer LLP in San Francisco, said that she has seen many government demands for irrelevant and burdensome documents from companies looking to hire workers who carry green cards. By law, employers seeking workers with green cards must certify that no qualified U.S. worker is available as part of the permanent residency process.
U.S. officials "are going to request résumés that the companies have received to make sure that they have considered all minimally qualified workers," said Koizumi. "Jobs are hard to find, and the government wants to encourage companies to hire U.S. workers."
The USCIS says that some of the increased scrutiny is required as part of the Troubled Asset Relief Program (TARP), which set new H-1B restrictions on firms that received bailout funds. The agency noted that in March, it cut back on the number of documents sought from companies.
In an e-mail to Computerworld, a USCIS spokesman noted that the agency is "requesting end-user documentation in those situations where the beneficiary is not working on-site for the petitioner. This will help us ensure that a job offer does indeed exist, and that the worksite is covered by the 'labor condition application' in the file and that a position is a specialty occupation." In a labor condition application, an employer must attest to paying the prevailing wage.
It's hard to tell whether the increased paperwork is discouraging foreign workers from applying for H-1B applications, though the pace of new applicants has fallen as U.S. unemployment numbers have grown. Approximately 65,000 H-1B visa applications have been received so far for the 2010 fiscal year that begins Oct. 1. A total of 85,000 H-1B visas are available for the fiscal year, including 20,000 designated for holders of master's degrees.
There are a number of reasons why the U.S. would step up enforcement of the H-1B and green card programs, especially for workers not housed at a customer site. A study by the USCIS released last fall found various problems, including fraud, in nearly one in five H-1B applications. And in February, the U.S. arrested 11 people in six states on H-1B fraud charges, alleging that companies were displacing qualified American workers.
A video of a 2007 seminar sponsored by Pittsburgh law firm Cohen & Grigsby that was posted on YouTube at the time was described as an invitation to increase enforcement in a separate video put together by the Programmers l tips to hiring managers and other viewers. In the video, an attorney speaking at the seminar is seen saying that "our goal is clearly not to find a qualified and interested U.S. worker. And that, in a sense, sounds funny, but it's what we are trying to do here."
The U.S. is also well armed to enforce visa rules through a $500 antifraud fee required with each H-1B application.
The Obama administration hasn't yet spelled out its direction for H-1B visas and employment-based green cards, but it is expected to support an expansion in their use. There's a belief among immigration attorneys that the enforcement actions are being directed by staffers, since the next director of the USCIS, Alejandro Mayorkas, is still awaiting confirmation. And while document request have picked up this year, they were also gaining steam before President George W. Bush left office.