Small Businesses A Target of USCIS Fraud Investigation

Small companies petitioning for foreign workers face a higher scrutiny from USCIS, and thus should ensure that every aspect of their H-1B Petition is carefully reviewed and prepared by a competent immigration attorney.  The consequences of unintended inconsistencies could be a delay in bringing required talent on board the company, or a denial of the H-1B petition and losing the worker entirely.

According to the recent May 18, 2012 release of confidentail internal USCIS guidance, USCIS has been instructed to target small businesses or new companies who want to hire foreign workers for fraud investigations.  According to a USCIS internal memo released May 18, 2012, USCIS should presume fraud when two of the following conditions exist:

          1.  Petitioning companies with a gross annual income of less than $10 million;
          2.  Petitioning companies which employ less than 25 employees;
          3.  Petitioning companies that were established within the last 10 years.

When an immigration officer initially handling the petition finds two or more of the above conditions exist, then the officer is instructed to further review the H-1B filing for the following:

          1.  presence of fraudulent information relating to the Petitioning company or sponsored foreign worker, and/or any forged documentation;

          2.  reported business was non-existent, suggested by a review of independent sources that reveal fictitious or inconsistent addresses in the petition, a questionable organizational chart is present in the record, there are photos of the purported business in a staged setting, there is evidence in the H-1B filing or otherwise uncovered that point to business zoning inconsistencies, or the Petitioning

companys website contains information inconsistent with the information in the H-1B petition; or
          3.  inconsistent or otherwise questionable evidence regarding the proposed job duties and/or the foreign worker's qualifications to perform those job duties.  In other words, the actual job duties are significantly different from the job position listed on the Labor Condition Application (LCA); 
work experience letters without signatures; missing addresses and/or telephone numbers for the      company; required skills, age or education discrepancies or mismatches.

When the above conditions are met, the immigration officer should refer the H-1B case to an immigration fraud unit (CFDO) for further scrutiny to rule out fraud in the petitioning process.

Moreover, the immigration officer initially handling the case is also instructed to review the filing not only for fraud, but for technical violations, including whether:

           1.  the physical job location is not listed on the Form I-129 Petition and/or LCA;
           2.  the beneficiary is not receiving the prevailing wages as listed on the LCA (salary discrepancies or mismatches);
           3.  any misrepresentation regarding the Beneficiary's current or prior immigration status (passport, I-94 or visa discrepancies);
           4.  any evidence that the Beneficiary paid the ACWIA filing fee associated with the H-1B filing fee;
           5.  any conflicting information about the business or its operations;
           6.  the facility would not be appropriate for the type of work to be performed ( for example, Petitioner claims to have 100 employees and the worksite is zoned for a residential apartment);
           7.  the job offered is inconsistent with the normal activities of the business.

Petitioning employers are advised to be diligent when preparing and submitting H-1B petitions to USCIS to ensure as much as possible that they obtain needed foreign talent.

LAC Wins Release of H-1B Fraud Documents for AILA

On May 18, 2012, USCIS released in full the remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center (LAC) and Steptoe & Johnson LLP on behalf of AILA.  AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. USCIS’s H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and have dramatically increased the frequency of unannounced worksite inspections, yet has kept the rules and guidelines related to the review process secret.

In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. Finally, in response to the district court’s grant of partial summary judgment to AILA in March 2012, which found USCIS’s explanations for withholding the records insufficient, USCIS released in unredacted form the remaining contested documents: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet , and 3) a Compliance Review Report.

This lawsuit is part of the LAC’s continued effort to increase transparency and promote accountability regarding DHS enforcement practices. Read more about the lawsuit on our here.

Update on the New ICE Policy on Prosecutorial Discretion

The Chief Counsel’s office that handles cases in the San Francisco immigration court appears to be approving requests to administratively close deportation cases for young persons who were brought to the U.S. with their parents while still minors, are in the U.S. without legal status and who are currently attending college.  If this applies to you or your family member, seek the advice of a competent immigration attorney to determine whether it is appropriate to try to close your deportation case.

New USCIS Medical Form

For those filing a green card application, you should be aware that USCIS has a new medical form, Form I-693 as of November 1, 2011.  To ensure no delays in your green card case, ensure that your Civil Surgeon, or USCIS approved physician, uses the new form.   Civil surgeons completing medical examinations between Nov. 1 and Dec. 31, 2011, should use the new form dated 10/11/11. However, USCIS will continue to accept the previous version, dated 7/20/10, for examinations completed between Nov. 1 and Dec. 31, 2011. Beginning Jan. 1, 2012, civil surgeons must use the new version of the form.  If a medical examination completed on or after Jan. 1, 2012, is reported using an outdated form, USCIS will reject the form, requiring the applicant to return to the civil surgeon and resubmit the new form.

Stepped Up On Site Inspections for H-1B Visa Holders in the Bay Area

USCIS has recently notified local immigration attorneys that the FDNS (Fraud Detection and National Security) has stepped up its local inspections of H-1B temporary workers in the Bay Area.  USCIS started on-site fraud inspections related to nonimmigrant visa petitions in 2008. Since then, thousands of worksite inspections have taken place.  In July 2009, FDNS implemented the Administrative Site Visit and Verification Program (ASVVP) to conduct unannounced site inspections to verify information contained in certain visa petitions.  USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.

The following scenario is typical for a site visit.  FDNS inspectors will show up unannounced at the work site, and ask for the employee.  The employer is not necessarily notified of the visit when the inspector arrives, but the employee can notify the employer or HR of the visit.  The Inspector will usually ask to see the employees desk, and ask questions related to the employee's I-129 Petition job duties.  Note that the Inspector does have a DHS badge, but it is generic, and does not have a name on the badge.  If employer's are uncomfortable, they can ask that the review be rescheduled, which may or may not be honored. The visit does not include a review of the public access file, which is DOL's responsibility.

The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

The American Immigration Lawyer's Association (AILA) recommend the following:

Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.

If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.

Should Technology Be Tempered With a Social Conscious?

In May 2011, three Chinese dissidents and Human Rights Law Foundation in Washington filed a lawsuit in the Federal District Court in San Jose, California, accusing Cisco Systems, Inc. of designing products to help the Chinese government persecute members of China's banned spiritual group, Falun Gong.  The issue in his cases is whether U.S. comanies can be held liable if foreign governments use their product to repress the rights of their citizens.  China treats political dissent as a crime and heavily filters the Internet to suppress it. Since February, the Chinese government it has stepped up its efforts to quash its detractors, detaining dozens of dissidents mostly for writing articles critical of the government.

On September 9, 2011, Human Rights Law Foundation amended its original complaint, saying it had new evidence that Cisco customized its products specifically to enable the authorities to persecute members of Falun Gong, some of whom were allegedly tortured and killed by the Chinese authorities.  The lawsuit said Cisco "willingly and knowingly provided Chinese officials with technology and training to access private Internet communications, identify anonymous web log authors, prevent the broadcast and dissemination of peaceful speech, and otherwise aid and abet in the violation of...fundamental human rights."  The new evidence includes a PowerPoint presentation from Cisco that describes a specific line of products "as the only product on the market capable of recognising over 90 percent of Falun Gong pictures." 

This lawsuit folows a string of lawsuits against large technology companies such as Yahoo, IBM and Microsoft for aiding in human rights abuses.

Cisco denies that the company has aided the Chinese government in persecuting its citizens who advocate for human rights, commenting that this technology is sold in worldwide markets.

Immigration News

Good News—Children of K-1 Fiancée Now Protected From Aging Out After They Enter the U.S.! 

In its June decision in Matter of Le, the Board of Immigration Appeals resolved the issue of whether the child of a fiancée of a U.S. citizen (a K-2 visa holder), who legally entered the U.S. under the age of 21, is eligible for adjustment of status even after turning 21. The Board concluded that the age of the child is “fixed” at the time the child is admitted to the United States. Previously, the Department of Homeland Security denied many adjustment of status applications, or green card applications for children who entered as a K-2, arguing that the K-2 child was ineligible for a green card because they had turned 21 after entering the U.S, but before the green card application was decided. Now, as long as a K-2 child is under 21 and enters the U.S., they can still obtain a green card as a K-2 even if they later turn 21 before the green card application is decided.

Beware—If ICE Takes You Into Custody, They Don’t Have to Tell You Your Rights!

The Board of Immigration Appeals recently held that noncitizens arrested without a warrant need not be advised of their rights under immigration regulation 8 C.F.R. 287.3(c)—including their right to an attorney and notification that any statements made can be used against them—until after a Notice to Appear has been filed with an Immigration Court. A Notice to Appear is the document that formally places a person in deportation or removal proceedings.  Be aware that if you are taken into ICE custody and questioned, what you say can be used against you later.  Ask for immigration counsel before answering any questions.