If you are somehow connected to the H1b visa program, whether you own or are employed by an IT consulting company, or whether you are a practitioner in the field, you cannot but help notice the increased investigative and prosecutorial efforts brought against such companies. There were 11 arrests recently in New Jersey involving a company called Vision Systems Group, Inc. for visa violations. The allegations include erroneous methodologies in the computation of prevailing wages for H1b workers. Another worthy article involving fraud allegation against small IT companies is what occurred on February 12, 2009 whereby the FBI and Immigration Officers arrested the 2 owners of a company called Worldwide Software, Inc. located in Iowa. The allegations against the aforementioned company owners include “misuse of immigration documents.” Even though the American Judicial System assumes one to be innocent until proven otherwise, such recent indictments and media coverage most definitely condemns these companies’ future viability. Lou Dobbs has also gone beyond to condemn the entire H1b visa program that it hurts US graduates from getting a job.
I have recently written a blog post relative to the enormous recent USCIS increase of Requests for Evidence (RFE) issuance against smaller IT companies who sponsor H1B visas. These RFEs have a debilitating effect on such smaller IT firms’ ability to hire additional H1b visa workers. A second blog post issued by our firm involve a sudden increased in USDOL H1B audits and LCA compliance investigations levied against small IT firms as well. Hence, if you summarize the recent governmental actions against small consulting companies, you come up with the following list:
1. What used to be a paperwork infraction in the H1B program is now being considered a criminal violation.
2. Smaller IT companies are being singled out and challenged by the USCIS in the form of cumulative paperwork inquiries aimed at frustrating their ability to hiring H1b visa workers even though such companies may have documentary proof that they are actively seeking US workers as well. These frustrating efforts come in USCIS issuing extensive requests for additional information seeking irrelevant information such as whether or not the IT Company occupies a building having proper zoning designation, etc.
3. Smaller IT companies have also been the target of increased Department of Labor audits resulting from complaints filed by “credible sources” relative to H1b practices.
These trends have few things in common: 1) most of these companies are information technology consulting firms owned by foreign individuals; 2) in my opinion, most of these alleged violations had occurred since the dawn of the H1B visa program; and 3) the recent increased enforcement activities will have the effect of increasing the legal cost of smaller companies to the point of either their extinction or abandonment of H1b visa sponsorship altogether. So you might ask, what is Uncle Sam really up to? Does Uncle Sam have something against foreign owned IT consulting companies? The logical answer is No. Then what is really going on?
I blame what is happening to smaller IT consulting firms on the Immigration Bar. Had these consulting firms been educated regarding the perils of the H1b visa program, they would not have gotten into so much trouble. The problem started with the “cookie cutter” approach many immigration lawyers have in representing their clients before the US DOL and the USCIS. Competition has resulted in “basement” immigration lawyers charging a token for H1b visas in exchange for large volume from IT consulting firms. With prices so low to manufacture few papers to submit to the government, there is no room for true legal representation, advocacy, or client education. The immigration lawyer must not only “file” the H1b visa petition, he must also engage in educating the client against certain questionable practices. If required, the immigration lawyer should spend his own time, effort and resources in educating businesses and community leaders regarding the importance and purpose of immigration regulations.
Take for example this true story which occurred to one of my clients who contacting me relative to sponsoring an H1b visa in the position of a programmer analyst. The client grumbled about my fee to file this H1b visa petition. When I computed the wage for the geographical area in question, the client told me “point blank” that the wage was too high and requested that I examine other position titles having less salary. I told the client that this is not proper as he had the obligation of presenting to the government true facts about the employment of foreign workers; needless to say that my advice nor did my fee sit well with this client. In fact, he left our firm and went to another attorney who is notorious for charging a “token” for legal fees and “cookie cutter” approach in H1b visa processing. I heard that he got this particular H1b petition approved. Few years passed and the same client came back to me, this time with a new company representative complaining that their immigration attorney did in fact charge less, but did not return phone calls and that the employees were extremely nervous about their cases. As it turned out the same employee needed an H1b visa petition extended. When I looked at what our friend the token lawyer filed, I was truly dismayed to see that the position that was filed was for a lower position and for lower wages. This is certainly an H1B violation? Who is to blame?
This type of practice invites employer disrespect to the law and the purpose of the regulations because they are able to find lawyers who are willing do what they want. I believe the immigration bar should engage into its own enforcement program to discipline immigration attorneys who are willing to bend the rules for the sake of additional business from employers. Employers are better served by immigration counsel who truly represents their interests and guard them sometimes, against themselves.