Mr. Lee's Article "U.S.C.I.S. Adjudications on H-1B Petitions Beginning To Smell Like Day-Old Fish"

By Alan Lee, Esq.

U.S.C.I.S. now appears to be shortchanging its small customers in H-1B adjudications without just cause. Anecdotal experience of this law firm and many others indicates that the agency is sending out overblown requests for further evidence (RFE's) where small organizations are concerned and then issuing denials even after strong responses by the petitioner. U.S.C.I.S. is moving in the direction of putting H-1B eligibility on the same plane of "bigness" for companies that it employs in L-1A adjudications for intracompany executives and managers - a stance which is unwarranted both in statute and regulation.

H-1B petitioners deserve better and U.S.C.I.S. must stop treating its small customers like potential crooks. Many small H-1B petitioners give the agency a large fee of $2,870 to premium process one employee and his or her dependents. The fee is not refundable regardless of how U.S.C.I.S. adjudicates.

An internal U.S.C.I.S. worksheet for H-1B adjudication which was sent unintentionally to an attorney and later posted by the American Immigration Lawyers Association shows among the present fraud indicators that U.S.C.I.S. adjudicators are using to take hard looks at cases are:

• If the organization has gross annual income of less than $10 million.

• If the organization has less than 25 employees.

• If the organization has been established for less than 10 years.

• If "marginal" companies are sponsoring in the fields of accounting, human-resources, analysts, and managers.

When Legacy INS long ago collected $35 for an I-129 adjudication and $15 for a change of status, nonsensical or less than fair adjudications could be better tolerated. But in this age of enhanced U.S.C.I.S. fees, no one is happy with adjudications that do not make sense nor give petitioners the benefit of the doubt.

Looking at official U.S.C.I.S. statistics on H-1B's during the last two months only supports the view that the agency has been less than fair in its adjudicative process. The current cap count on top of the 20,000 master cap numbers has fluctuated from the most current count on 8/27/09 of 44,900 to 45,000 on 7/3/09, 44,400 on 6/5/09, 45,800 on 5/29/09, to 45,000 on 4/27/09. When asked about the numbers which at various times appear to go backwards, U.S.C.I.S. stated that numbers had been added back for cases that had been denied, revoked, or withdrawn during the cap filing period.

It appears fairly obvious that the job situation in the country is affecting the way that H-1B adjudicators are looking at the petitions, but they should also realize that small petitioning organizations are putting out hard-earned moneys for hopefully fair adjudications. And while there may be a concern as expressed in a September 2008 U.S.C.I.S. report on H-1B program fraud and compliance that the H-1B visa is being misused in some instances, many of the cited violations were technical ones, and some of the ones cited as fraud had nothing to do with the offered position itself, but with the beneficiary's status or who paid the required training fee.

U.S.C.I.S. should lift its heavy finger from the H-1B program and scrap its present fraud indicators. The indicators appear to have been put together in haphazard fashion and discriminate against small organizations' use of the H-1B program. Many small businesses with legitimate need for an individual in a specialized occupation do not have $10 million in sales or 25 employees or been in business for at least 10 years. In addition, the "marginal companies" such as liquor stores, dry cleaners, gas stations, residential care facilities, convenience stores, donut shops, fast-food restaurants, dental office, 99¢ stores, parking lots, etc. cited as suspect by U.S.C.I.S. for lacking the organizational complexity required to support positions on a full-time basis cannot be so generalized as there are many large dental offices, parking lot corporations, or small chain liquor stores, dry cleaners, gas stations, convenience stores, etc., which require professionals in specialized capacities. U.S.C.I.S. needs to go back to the drawing board and come up with a more reasonable, detailed, and accurate assessment of fraud indicators than the above ones that would put 95% or more of the businesses in America on the suspect list. U.S.C.I.S. should also remind itself that this is not the L-1A program for intracompany managers and executives, but the H-1B program which is available to large and small businesses alike.


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2009 Alan Lee, Esq.


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