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denied, revoked, or withdrawn during the cap filing period.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.
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