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Immigration status: troubled

A federal judge in Newark is presiding over a lawsuit brought by employers against the federal government over H-1B visas

A technology business association is fighting a legal battle in Newark against the federal government over the bureaucracy’s handling of H-1B, or specialty occupation, visas.

The Small and Medium Enterprise Consortium is accusing the government of changing its requirements to prove an employee-employer relationship, therefore making initial H-1B visas or visa extension much harder than before.

Jon Wasden, litigation director at Economic Immigration Support Services in Washington, D.C., is representing the tech association. Wasden is also representing more than 70 companies in a joint case in D.C. on similar claims: a change of the requirements to prove an employee-employer relationship; a requirement for an employer to show specific, non-speculative work for the entire three-year duration of an H-1B visa (“Not a lot of businesses can tell you what you’ll be doing three years from now,” Wasden said); and the practice of approving visas for just a couple of days at a time, giving an employee no real opportunity to move or even time enough to fly across the world.

Because the U.S. Citizenship and Immigration Services runs on receipts, Wasden said, the short approvals generate more revenue for the agency as employers must pay millions of dollars in visa fees and attorney fees.

Immigration law attorneys say that as a result of Buy American Hire American, a Trump administration executive order issued in April 2017, the U.S. government has made it unreasonably hard for employers to hire necessary foreign labor, particularly in the information technology category.

According to Valarie McPherson, special immigration counsel at Proskauer Rose in Newark, and the USCIS March Visa Survey, there has been a marked increase in requests for evidence in cases of third-party placement. In other words, if an IT staffing company hires a foreign national to work for a certain client, the consulate will contact the client to confirm instead of the employer.

“About 60 percent of USCIS visa applicants received a request for evidence in the first quarter of 2019. In the last fiscal year, the highest [by quarter] was still under 50 percent,” McPherson explained. “From 2015 to the first quarter of 2019 you’ve got more than a 30 percent increase for requests, which means more time and money spent getting these visas through.”

Employers can run into issues, like a delay in or denial of a visa, if USCIS can’t get through to someone who has specific enough information about a visa applicant’s placement. Large multi-national companies run into this problem she said, and it is more often “a case of large bureaucracy trying to find out which department is hiring which guy for a third-party placement” than a case of visa fraud.

About 85 percent of H-1B visas were approved in 2015. In the first quarter of 2019, that number is down to 60 percent.

The H-1B program was created for tech businesses in 1990, Wasden said. However, the new administration has provided different interpretations of the rules and made one huge change: prior visa approval no longer guarantees future approval. As the process for green card approval is extremely backlogged, a visa holder’s presence in the U.S. is contingent upon their visa extension.

The USCIS is supposed to take no more than 30 days to approve an H-1B visa or visa extension. Last year, some adjudications took up to a year according to Wadsen, which is one of the reasons he’s in court in D.C.: when adjudication lapses legal status and results in a denial of extension, the employee is no longer allowed to work in the U.S.

“None of these things have anything to do with the employee, and the employer is doing the same thing that they’ve been doing for 10 or 20 years. But the USCIS isn’t,” Wadsen said.

In new visa application cases, when the USCIS takes longer than 30 days, an employee’s start date in the U.S. can be put off, cutting into the time the employer expected to have the worker. If a three-year visa is approved six months later than it should be, that three-year visa is effectively turned into a two-and-a-half year visa.

This uncertainty poses a challenge for employers who rely on predictability to keep business moving.

“The [foreign workers] are building IT systems for the companies, and [their employers] don’t know from one month to the next the roster of personnel,” Wasden said. “If a round of extensions get denied, it can do a number on the workforce for any different project. It chills predictability.”

An extension denial is particularly hard on the families as well.

“You have people on the H-1B visa and they’ve been here for 15 years. They have a house and kids in high school, and then [USCIS] denies their extension,” Wasden said. “Even though they’ve got an approved petition for the green card [which allows for unlimited H-1B extension] their entire life relies on their valid status. So they do everything to not step out of line, [doing] a fire sale on their house and self-deporting.”

Dire audit outcomes

New H-1B visas aren’t the only H-1B cases being scrutinized under this administration. Scott Malyk, partner in Meyner and Landis’ immigration law group in Newark, said the USCIS is now ramping up the frequency and intensity of Fraud Detection and National Security audits and investigations of employers who filed H-1B petitions between 2015 and 2018 in search of visas approved based on fraudulent representations by the employer.

Malyk

Previously, the FDNS audits lacked teeth, Malyk said, as such audits would typically result in a potential revocation of an individual H-1B approval, possible monetary fines and, at worst, debarment from the H-1B program. Now, the egregious instances of alleged fraud are being referred to ICE and Homeland Security Investigations and even some cases are being referred to the U.S. Attorney’s Office for criminal prosecution on the federal level.

There are, indeed, some bad actors who abuse the H-1B program. In February, a Middlesex County man was charged with allegedly creating false visa applications for workers he recruited for his IT staffing company in Somerset County. What’s notable, according to Malyk, is that these criminal prosecutions are a departure from previous procedures.

“We’re handling some of these investigations and they’re no longer ‘this isn’t completely accurate, here’s a fine,’” Malyk explained. “Ratchet up the highest level of penalty, which traditionally has been debarment from these visa programs, [meaning] the employer can’t utilize these visa programs for a period of time.”

With the U.S. unemployment rate below four percent and millions of jobs unfilled, the tech companies that use the H-1B visa most can’t afford to be debarred.

What are employers to do?

To head off visa denials in third-party placements, McPherson recommends making sure USCIS has the right contact information for the third-party client a visa applicant will be working for. “If there are follow-ups from the U.S. consulate abroad, the third-party can quickly confirm the nature of the arrangement and not delay the visa,” she said.

However, in recent history visas have been denied in an unpredictable way, she said.

As for H-1B adjudications going forward, the trend of the USCIS issuing voluminous requests for evidence are expected to continue. According to Malyk, the USCIS is constantly changing its focus and scrutiny on different aspects of the H-1B regulations, altering its interpretation of regulations that have been on the books for years.”

“Business immigration is an area of the law that requires someone with a deep level of experience with these cases, to prepare them properly to give the client the best chance of approval,” Malyk said.

Wasden recommends employers send a detailed letter with on-boarding estimates to the USCIS along with any visa applications because federal statutes require the agency to take into account the needs of companies.

“Look at how long it takes you to get an employee in place once you have the approval,” he said. “The consulate processing can take anywhere from two weeks to a month. You have to get the employee set up with health insurance, and then there’s travel time, and all the things that go along with international moves. You have to start the process several months in advance [of an employee’s start date].”

When it takes USCIS more than 30 days, he said — all H-1B applications have to be submitted the first week of April for a start date on Oct. 1 — the employer can start suing.

The government has been trying to delay and undermine the lawsuit in Newark since it was filed last May, but Wasden said it is proceeding. Now USCIS has to answer the complaint on March 7. After that, Wasden expects a ruling from U.S. District Judge Madeline Cox Arleo.

 

Gabrielle Saulsbery
Albany, N.Y. native Gabrielle Saulsbery is a staff writer for NJBIZ and the newest thing in New Jersey. You can contact her at gsaulsbery@njbiz.com.

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