Why Is H-1B A Dirty Word?

Author: on 02/01/2010


By Eleanor Pelta, AILA First Vice President

H-1B workers certainly seem to be under fire these days on many fronts. A new memo issued by USCIS on the employer-employee relationship imposes new extra-regulatory regulations on the types of activities in which H-1B workers can engage as well as the types of enterprises that can petition for H-1B workers. The memo targets the consulting industry directly, deftly slips in a new concept that seems to prohibit H-1B petitions for employer-owners of businesses, and will surely constitute an open invitation to the Service Centers to hit H-1B petitioners with a new slew of kitchen-sink RFE’s. On another front, USCIS continues to make unannounced H-1B site visits, often repeatedly to the same employer. Apart from the “in-terrorem” impact of such visits, I personally cannot see the utility of three different visits to the same employer, particularly after the first one or two visits show that the employer is fully compliant.

But USCIS isn’t the only agency that is rigorously targeting H-1B’s. An AILA member recently reported that CBP pulled newly-arrived Indian nationals holding H-1B visas out of an immigration inspection line and reportedly placed them in Expedited Removal. The legal basis of those actions is still unclear.

Finally, recent H-1B “skirmishes” include various U.S. consular posts in India issuing “pink letters” that are, simply put, consular “RFE’s” appearing to question the bona fides of the H-1B and requesting information on a host of truly repetitive and/or irrelevant topics. Much of the information that is routinely requested on a pink letter is already in the copy of the H-1B visa petition. Some of the letters request payroll information for all employees of the sponsoring company, a ridiculous request in most instances, particularly for major multi-national companies. One of the most frustrating actions we are seeing from consular officers in this context is the checking off or highlighting of every single category of additional information on the form letter, whether directly applicable or not, in effect a “paper wall” that must be overcome before an applicant can have the H-1B visa issued. Very discouraging to both employer and employee.

How have we come to a point in time where the H-1B category in and of itself is so disdained and mistrusted? Of course I’m aware that instances of fraud have cast this category in a bad light. But I think that vehemence of the administrative attack on the H-1B category is so disproportionate to the actual statistics about fraud. And interestingly, the disproportionate heavy-handed administrative reaction comes not from the agency specifically tasked with H-1B enforcement—the Department of Labor—but from CIS, CBP and State. Sometimes I just have to shake my head and ask myself what makes people so darn angry about a visa category that, at bottom, is designed to bring in relatively tiny number of really smart people to work in U.S. businesses of any size. It has to be a reaction against something else.

Yes, a great number of IT consultants come to the US on H-1B’s. It is important to remember that so many of these individuals are extremely well-educated, capable people, working in an industry in which there are a large number of high profile players. And arguably, the high profile consulting companies have the most at stake if they do not focus on compliance, as they are the easiest enforcement target and they need their business model to work in the U.S. in order to survive. Some people may not like the business model, although arguably IT consulting companies provide needed services that allow US businesses, such as banks and insurance companies to focus on their own core strengths. Like it or not, though, this business model is perfectly legal under current law, and the agencies that enforce our immigration laws have no business trying to eviscerate it by policy or a pattern of discretionary actions.

It is true that some IT consulting companies’ practices have been the focus of fraud investigations. But DOL has stringent rules in place to deal with the bad guys. Benching H-1B workers without pay, paying below the prevailing wage, sending H-1B workers on long-term assignments to a site not covered by an LCA—these are the practices we most often hear about, and every single one of these is a violation of an existing regulation that could be enforced by the Department of Labor. When an employer violates wage and hour rules, DOL investigates the practices and enforces the regulations against that employer. But no one shuts down an entire industry as a result.

And the IT consulting industry is not the only user of the H-1B visa. Let’s not forget how many other critical fields use H-1B workers. In my own career alone, I have seen H-1B petitions for nanoscientists, ornithologists, CEO’s of significant not for profit organizations, teachers, applied mathematicians, risk analysts, professionals involved in pharmaceutical research and development, automotive designers, international legal experts, film editors, microimaging engineers. H-1B’s are valuable to small and large businesses alike, arguably even more to that emerging business that needs one key expert to develop a new product or service and get the business off the ground.

The assault on H-1B’s is not only offensive, it’s dangerous. Here’s why:

  • H-1B’s create jobs—statistics show that 5 jobs are created in the U.S. for every H-1B worker hired. An administrative clamp-down in the program will hinder this job creation. And think about the valuable sharing of skills and expertise between H-1B workers and U.S. workers—this is lost when companies are discouraged from using the program.
  • The anti-H-1B assault dissuades large businesses from conducting research and development in the US, and encourages the relocation of those facilities in jurisdictions that are friendlier to foreign professionals.
  • The anti-H-1B assault chills the formation of small businesses in the US, particularly in emerging technologies. This will most certainly be one of the long-term results of USCIS’ most recent memo.
  • The attack on H-1B’s offends our friends and allies in the world. An example: Earlier this year India –one of the U.S.’s closest allies –announced new visa restrictions on foreign nationals working there. Surely the treatment of Indian national H-1B workers at the hands of our agencies involved in the immigration process would not have escaped the attention of the Indian government as they issued their own restrictions.
  • The increasing challenges in the H-1B program may have the effect of encouraging foreign students who were educated in the U.S. to seek permanent positions elsewhere.

 

Whatever the cause of the visceral reaction against H-1B workers might be—whether it stems from a fear that fraud will become more widespread or whether it is simply a broader reaction against foreign workers that often raises its head during any down economy –I sincerely hope that the agencies are able to gain some perspective on the program that allows them to treat legitimate H-1B employers and employees with the respect they deserve and to effectively enforce against those who are non-compliant, rather than casting a wide net and treating all H-1B users as abusers.

16 Comments

  1. AWisner says:

    I agree that most immigration issues that are currently taking the attention of USCIS, ICE, CBP and DOS are actually better handled by DOL. What is the real issue with undocumented workers? It's not that people are working, it's that employers may be exploiting them and violating US and state labor and employment laws. DOL should be the agency staffing-up, as wages and working conditions are the real issues.

  2. david says:

    20% PROVEN fraud is small? Delve deeper and this number will be extremely conservative.

    There are so many worthy REAL immigrants that need your services to help them in this country.
    Why do you need to allow yourself to completely ignore the devastating impact on the middle class in this country.
    If you think your career path is safe, then you're very much mistaken. The bodyshops know that they need you for now until they have the legal knowledge themselves and won't need your companies anymore.
    They will then employ people like you as a token white face.

    Legal back office work is already being outsourced! It will get worse.

    America is a land of immigrants but these bodsyhops have no intention of improvinig America. Their only desire is to make what they can and get out with the money and knowledge. Believe me. I have seen it and currently have the misfortune of dealing with it on a daily basis.

  3. James says:

    What goes around comes around. Immigration lawers wanted to make $ flooding America with "immigrants" (locusts) and now those locusts are coming after lawyers' jobs. You did it to America's IT people with a smirk, now it's coming back to haunt you.

    I hope you will enjoy losing your house, car, livlihood, income, everything else that you have. You have done it to yourselves and to this nation.

    Maybe now you will wake up.

  4. aspid-istra says:

    Racial profiling? Indians do not constitute a race. They are a nationality.

  5. H1-B's create jobs? Statistics show that 5 jobs are created in the U.S. for every H-1B worker hired? What are H1-B's made of, magical pixie dust?
    How is hiring an H1-B worker "magically different" from hiring a citizen/permanent resident?
    You know the saying: "There are lies, damned lies and statistics".

  6. A says:

    It might be nice if the H-1B bashers take a basic class in economics before fearmongering. Yes, bringing skilled workers to the US with fresh ideas and innovation creates jobs here. Forcing them to apply there skills elsewhere draws business away from the US. It's the magic pixie dust that we like to call Econ 101.

  7. callipassion says:

    Nice Blog & I really enjoyed reading it….

    "Not H-1B users as abusers" – Very True…

    Good Luck.

    -VJ.

  8. It might be nice if the illiterate take a class in English 101. Please tell me what specifically in my previous post can be construed as "fearmongering"? Learn the meaning of words before you use them.
    Econ 101 never taught anything about hiring H1-B workers "magically" creating jobs. You must have a degree in inventing lies.
    However did you label me as an H1-B basher? I came here on H1-B myself. I'm not a "self-hating" H1-B hire. H1-B provides a useful service. I just don't agree with the "5-job opening effect" statistic mentioned in the article.
    When I was hired, the company did not suddenly open up 5 new positions open for hiring. They opened up 3 because they got me at 1/3 the cost of what they would typically pay a person of my experience (by hiring me as a "new graduate" and disregarding my 5 years experience up to that point). :-)

  9. rajaweb says:

    USCIS started issuing RFEs based on this H1B memo. They have titled this section of the RFE as "H1B, Employer-Employee Relationship, Third Party Placement – Initial Petition." Also, it has a foot note "ATTACHEMENT TO I-797 (Rev. 01-21-2010, D5)". That means USCIS going to issue RFE in all petitions filed by the consulting firms.

  10. There are merits to both sides of the argument.

    It is true that H1-B, just like all other visa categories, is prone to fraud. Immigration lawyers should know that more than anyone else.

    However, the program is tiny compared to the number of jobs available. Only about 60,000 H1-B's are issued each year. Big companies get a good chunk of that (and they have no reason to defraud.. they have more money than you can ever count)

    So, it's a balancing act that USCIS and DOL must do to keep things on the up and up.

    We can only make the system better.

  11. Nemo1 says:

    Very accurate analysis! As a software consulting owner who been twice denied H1B petition this year I am curious why you Immigration lawyers so much afraid of USCIS? Every time I suggest suing them, you get your tails between your legs and start explaining to me how impossible it is. Don’t you guys actually thankful to them for providing job for you?

    Anybody has guts here?

    I would like to sue them for damages: I am loosing lots of $$ daily because they didn't let me bring so much needed consultants.

    Besides the money, I want some main parasites to be fired and forever forbidden from taking any government job: Napolitano, Aytes, Neufeld, California Center Director, and Mayorkas. They should go back to school to learn how business works. This idiots' attack on consulting businesses apparently orchestrated by some higher ranked individuals who hate our businesses, hate our country, and are determined to destroy both, but I can only guess who they are.

    If interested, shoot me email at nemo1@comcast.net
    I cannot pay much, thanks to them my business isn't doing very well now, but I can work with you on % of damages. Besides we can discuss class action and ask other business owners to join. I myself will join any class action against the SOBs, so please let me know if you know of one.

  12. Nemo1 says:

    … one more thing. About fraud. Of course there is a fraud. Like everywhere. Though, I must say, with their ever increasing fees you don't easily file for H1B – only if you really know you can make $$ which makes it genuine business. Besides, it is not up to USCIS to distinguish between fraud and not fraud. This is FBI's job. If you suspect someone – go ahead and inform FBI, and leave it to them to do the job. Like any government bureaucrats the USCIS idiots can only attack (or not) all businesses as one. I think this time they crossed the line and took too much on themselves. They all should be fired.

  13. rajaweb says:

    Nemo1, you just suggest suing USCIS, but you don't want to be a party to the law suit. This is the case for all consulting companies talking about the law suit. Attorney cannot sue… they have no standing, they need a plaintiff. Are you ready to be a party to the law suit against USCIS… the consulting companies always talks about suing USCIS, but when comes to action, they disappear.

  14. Nemo1 says:

    Sorry, I am using just plain English, what other language you want me to use to tell you that I want to sure CIS, I know only 3 more.. How more can I tell you that I want to be a Plaintiff, a party, in the lawsuit? I thought my words "I would like to sue them", and whole last paragraph of my previous post leave no doubt about it. But I need a GOOD lawyer with GUTS (please notice these are 2 (two) independent conditions).

  15. mack says:

    I’m just share my views from top to bottom as I see them.
    I feel this is a good simply because its consistent with how the user is used to seeing the comment form and filling out information in general. Filling out the name and email wont take me much time, and if you really wanted to go ahead and type the comment first, you can do so, not really that big of a work around.

    small business plane out line

  16. Swapnil says:

    20% of H1B Fraud out of 60000 is not an issue. It's not an issue when you have 10000 illegal immigrants a day from Mexico crossing the Sonora Desert and coming to the USA and faking their SSNs and taxids and depriving the thousands of americans from lower level jobs.

    Its not an issue when 100000 illegal immigrants from Haiti are being considered given legal immigration.

    You have bigger problems to be worried about than the meager 20% of 60000 H1Bs who are all paying ridiculous amounts of money to the government that they would never ever use. Soc Sec tax. etc.

    The fact that you are trying to protect your jobs by cheating, when corporations want cheap labor and people who are hard working, is the obvious issue.

    I would shut that trap of yours if I were you. Either reduce your cost of employment, or allow foreign skilled workers to meet those needs.

    If you think immigration to the US is bad, leave this land to the native american indians. You can go back to where you came from. And stay out.