American Immigration Council is wrong about H-1B fraud rules

The American Immigration Council (AIC) has a new blog post that makes some troubling claims regarding certain aspects of the H-1B guest worker program. In her piece, “Lawsuit Uncovers USCIS’ Double Standards in H-1B Program,” AIC attorney Emily Creighton discusses what she believes to be the significance of a number of revealing internal documents AIC obtained from U.S. Citizenship and Immigration Services (USCIS) through a Freedom of Information Act (FOIA) request and subsequent litigation. I admire and applaud the lawyers at the AIC’s Legal Action Center for their hard work to force the release of the documents, because the action has brought another element of much-needed transparency to the flawed and much-abused H-1B guest worker program for temporary foreign workers with at least a college degree. However, the conclusions Creighton draws regarding AIC’s new discoveries are off the mark.

Creighton describes the substance of her findings:

According to fraud referral sheets [obtained from USCIS], a fraud investigation may be triggered when a business asks for an H-1B employee if the business has a combination of the following characteristics: 1) a gross annual income of less than $10 million, 2) fewer than 25 employees, or 3) has been in business for fewer than 10 years.

In her opinion, this means that “instead of supporting small businesses that attempt to hire highly-skilled foreign workers, in many cases, USCIS discourages their success by subjecting them to a near presumption of fraud.”

To Creighton, the referral guidelines “suggest that the agency’s implementation of the program sometimes impedes business growth.”

EPI, labor organizations, and various auditors have repeatedly criticized the loopholes that employers take advantage of, and the lack of adequate regulation and enforcement in the H-1B program. USCIS has responded to criticism from the Office of the Inspector General and GAO—and what the documents reveal are the various factors used by USCIS adjudicators when making a subjective determination about which H-1B employers to question or investigate. The three factors listed above by Creighton were selected after a USCIS fraud investigation—formally titled the “Benefit and Fraud Compliance Assessment” (BFCA)—uncovered fraud and technical violations at an alarming rate in the H-1B program; more than 20 percent of audited employers had violations. The investigation led to the conclusion that “the largest volume of fraud, technical violation(s), and/or abuse were linked to [the three above listed] specific fraud indicators.”

Creighton attempts to impugn the BFCA report by suggesting the sample of H-1B cases it used is “statistically insignificant.” But the BFCA notes its findings “represent statistically valid figures based on generally accepted statistical reporting guidelines,” and includes a detailed explanatory footnote. Creighton’s bio does not mention any expertise in statistical methods, and she offers no support for her contention.

USCIS internal documents are clear in stating that these factors are the start of an inquiry, not the basis for a final determination of fraud or misconduct. If an adjudicating officer (AO) reviews a petition from an H-1B employer that falls under one or more of the three identified categories, then:

[n]o single indicator or combination of these indicators is necessarily determinative of the merits of an H-1B petition. However an AO who identifies a petitioner that has two or more of these indicators… should review the H-1B petition with an awareness of the heightened possibility for fraud and/or technical violations…

USCIS adjudicators are simply advised to take a closer look at certain applications, not prejudge them. Furthermore, the BFCA revealed a number of problematic H-1B occupations that require additional scrutiny by adjudicators, and Creighton fails to mention that USCIS also lists a number of additional factors its adjudicators must consider, which may indicate fraud, and all of which are justified based on the findings of the BFCA.

Ultimately, Creighton’s assertion is a radically biased interpretation of the documents obtained which seeks to reduce the already minimal efforts by USCIS to enforce the rules of the H-1B program.

And let’s consider Creighton’s claim that USCIS H-1B denials “impede[] business growth.” By “impede,” I assume she means USCIS is preventing businesses from getting the H-1B workers they request. But newly released I-129 data from USCIS prove that USCIS denies a miniscule proportion of the H-1B petitions it reviews. In three of the past four fiscal years, USCIS’s H-1B denial rate for petitions subject to the annual cap of 85,000 visas for the private sector has averaged 5.2 percent. In 2012, it was only 4.2 percent. In 2010, the denial rate was much higher at 11.8 percent, but likely because USCIS received an unusually high number of petitions, and can only approve as many as allowed by law. Since the BFCA report revealed a fraud and technical violation rate of more than 20 percent in its sample of cases, that means that if the true rate of fraud is still anywhere near 20 percent, then USCIS is approving a significant number of fraudulent or violative petitions. These data support the need for more, not less scrutiny of H-1B petitions, especially those most likely to be fraudulent based on past experience.

Two other points made by Creighton merit a quick response. First:

… because the small business seeks to fill these positions with H-1B workers, in the course of the visa process, the business may be required to answer an onerous “Request for Evidence” (“RFE”) from USCIS asking for extremely detailed information that is often difficult or impossible to obtain.

For the record, an RFE is simply USCIS requesting additional information from an H-1B petitioning employer that the agency believes is required in order to establish whether the petition meets all of the legal requirements for approval. Rather than requesting information that is “extremely detailed” or “difficult or impossible to obtain,” according to the applicable regulation, an RFE must “specify the type of evidence required, and whether initial evidence or additional evidence is required,” and it must be “sufficient to give the applicant or petitioner adequate notice and sufficient information to respond.” Employers who request the government-provided benefit of hiring an H-1B worker must satisfy the burden of proof that their assertions are legitimate—and they are provided with adequate due process if USCIS even considers denying that benefit. That seems reasonable, not “onerous.”

And finally, Creighton laments that H-1B employers may someday “be subjected to unannounced workplace visits.” This also seems like a reasonable burden on employers in order to protect foreign guest workers—as well as U.S. workers employed alongside them in the same workplace—from the 20 percent of unscrupulous employers that misuse the H-1B program. Although Creighton doesn’t mention it, the BFCA found “H-1B workers were performing duties or receiving payment significantly different from those described in the applications.” Violations like these harm immigrants and U.S. workers alike, especially by keeping them underpaid. If Creighton believes there’s a better way for USCIS to ensure H-1B workers are being treated fairly—other than unannounced employer site visits—I’d like to hear it.

Creighton’s unbalanced analysis is typical of too many immigration lawyers and trade associations. She seems oblivious to many of the interests the rules are intended to protect. The H-1B visa program provides a valuable benefit to employers, but if the rules that protect U.S. workers from unfair, wage-busting competition and that protect immigrant workers from abuse are not enforced, the continued existence of the program should be questioned.