H-1B Visa Reform Takes Shape to Address Fraud, Procedural Nightmares

By Kevin Fogarty  |  Posted 2008-11-07

H-1B Visa Reform Takes Shape to Address Fraud, Procedural Nightmares

The agency responsible for granting H-1B visa applications plans to tighten up its procedures for vetting and approving the applications in the wake of a report indicating as many as 20 percent of the applications may be fraudulent or technically flawed.

The U.S. Bureau of Citizenship and Immigration Services, which is responsible for approving and administering H-1B applications, will increase the level of detail in which H-1B visa applications are examined and do what it can to eliminate the types of problems identified in the report, according to department spokesman Bill Wright.

The report is an audit of 246 applications that found 13 percent of the applicants used forged documentation, false businesses or addresses, false job offers, or misrepresented their immigration status. Another 7 percent had technical violations such as requiring the applicant to pay the application fee or list a salary substantively above what the applicant would actually be paid.

The report, H-1B Benefit Fraud & Compliance Assessment (PDF), was done at the request of Sen. Chuck Grassley, R-Iowa, a longtime critic of U.S. immigration policy in general and the H-1B program in particular.

Neither Grassley nor other representatives involved in H-1B legislation responded to calls, but the staff of Lamar Smith, R-Texas, ranking member of the House Judiciary Committee, called the frequency of the fake degrees, fake businesses and forged documents "troubling."

"We cannot allow individuals to abuse H-1B visas in order to enter the country fraudulently and take jobs from American workers. The Administration must do more to protect the American worker and restore integrity to the H-1B visa program," the statement continued. 

Among the changes under consideration, according to Wright, are:

  •  Increases in the number of visits investigators make to the sites of potential H-1B employers, to confirm that the companies exist, the nature of their business and the job descriptions of the H-1B applicants involved.

  • Modifying the evidence required to extend an H-1B visa, such as a W-2 form to confirm the salary being paid.

  • Changes to the I-129 forms used in the applications to make them less cumbersome to fill out and less prone to error.

  • A plan to use "open-source" data to verify the identity of petitioners. Open-source, Wright said, is any form of data that is open to the public, though he couldn't say whether that meant information available through Internet searches, commercial databases or other methods.

The USCIS is also working with the Department of Labor on changes to the Immigration and Naturalization Act that would allow a broader use of the $500 every applicant pays into an anti-fraud fund that is supposed to pay for the policing of the system.

H-1B applications are a very complex process, and the forms involved are far from clear, according to Bob Deasy, director of liaison and information for the American Immigration Lawyers Association, whose members often represent employers of H-1B workers.

"There are things that are counterintuitive," he said. "An employer may not be aware of the steps that have to be taken in order to lawfully comply under the steps of the H-1B program. The approach we take looking at the report is that it highlights the need for more clarity with immigration service forms and instructions from the USCIS."

Potential Changes Not Enough


None of the potential changes are such that they could fix even the majority of problems with the H-1B application process, according to Ron Hira, assistant professor of public policy at Rochester Institute of Technology and co-author of "Outsourcing America."

"They get $500 per H-1B application for anti-fraud, and 85,000 applications-that gives them $42 million to play with, year after year," Hira said. "I can't imagine they're doing much with it considering they just reported that 20 percent of the visas were given under false pretenses."

The wish to use "open-source" data to confirm an applicant's identity or other information sounds odd, but may refer to the legal and procedural roadblocks that prevent the USCIS and the Department of Labor from sharing data. The General Accountability Office published a report in 2006 criticizing the lack of communication.

Before an H-1B petition can be considered by the USCIS, the applicant has to go through the Department of Labor to certify the type of job that will be covered and the type of qualifications the worker has to have, where the job will be located, how much it will pay, how many workers are involved, and other criteria.

Some but not all of that data is available to the USCIS when it is approving the petition. Among the information it can't get is information on how much a particular worker is actually paid. One of the most common complaints received about H-1B visas is about companies that pay an H-1B worker less than they'd promised.

"It's good that the USCIS is making some changes," Deasy said. "There is a fund that used to be used for fraud detection and prevention; we support that.  We don't interpret the report as a cause for huge alarm or concern, but as a way to identify weaknesses and where steps can be taken to shore up any weaknesses."

"I'd call it a tiny step in the right direction," Hira said. "It shows that the whole process is riddled with problems, but a lot of the problems are legal issues, how the program is set up and what the rules are, not just the kinds of fraud and procedural errors in that report."


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