Being Targeted For Excessive and Unreasonable H-1B Visa RFE? Recently Discovered Documents from the USCIS Fraud Investigation Procedures May Be a Clue

1077691_dark_secrets___.jpgThe Department of Homeland Security and the US Citizenship & Immigration Services released unredacted copies of documents that have been sought by the American Immigration Lawyers Association after prolonged litigation. This is the result of a Freedom of Information Act lawsuit filed by the Legal Action Center of the American Immigration Council on AILA’s behalf with Steptoe & Johnson LLP, AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010). The purpose of the FOIA lawsuit was to compel DHS and USCIS to release records of agency policies and procedures in connection with H-1B fraud investigations.

AILA submitted three FOIA requests to the USCIS in 2009 for documents including memoranda, standard operating procedures, and templates used for Requests for Evidence regarding H-1B petition fraud. USCIS initially decided to withhold documents. Once AILA filed suit in US District Court to compel turnover of the documents, USCIS determined that some information could be disclosed and released heavily redacted documents. The Court ordered the USCIS to better explain why the withheld information cannot be produced. Subsequently, in May 2012, USCIS disclosed the documents in full.

Documents released are the October 31, 2008 Neufeld Memorandum “H-1B Anti-Fraud Initiatives – Internal Guidance and Procedures in Response to Findings Revealed in H-1B Benefit Fraud and Compliance Assessment,” H-1B Petition Fraud Referral Sheet, and Compliance Review Report.

The Neufeld Memorandum provides the following. Identification of the “10/25/10” fraud indicators include:

  1. petitioners with a gross annual income of less than $10 million,
  2. petitioners which employ 25 employees or less, or
  3. petitioners whose business was established within the last 10 years.

H-1B petitions with two or more of these indicators should be reviewed with an awareness of the heightened possibility for fraud and/or technical violations.

The Memorandum provides that as a result of such review, the petition should be referred to the Center Fraud Detection Office if one or more of the following are identified:

  1. presence of fraudulent information relating to the petitioner, the beneficiary, and/or any forged documentation,
  2. evidence that the reported business was non-existent such as a questionable organization chart, photos of the business in a staged setting, zoning inconsistencies, or website information conflicts with the petition, or
  3. inconsistent or questionable evidence of job duties and/or qualifications including experience letters without signatures, missing company addresses and/or telephone numbers, discrepancies or mismatches in required skills, age, or education.

The Memorandum provides that petitioners who meet the “10/25/10” fraud indicators above, should be paid particular attention for the presence of the following:

  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 wage as listed on the LCA,
  3. misrepresentations regarding the beneficiary’s current or prior immigration status,
  4. evidence that the beneficiary paid the ACWIA fee,
  5. conflicting information about the business and/or its operation,
  6. the facility would not be appropriate for the type of work performed, or
  7. the job offered is inconsistent with the normal activities of the business.