The H-1B program has been coming under attack lately. Ted Cruz wants to put a moratorium on H-1B
visa. That seems to be the Republican solution to every crisis----stop it and
put your head under the sand, and the problem will go away. Is there fraud in the H-1B program? Yes. But
the way to stop it is not through a moratorium. Assuming that most frauds in the H-1B visa is
perpetrated by the computer consulting industry, this blog will deal primarily
with the problems pertaining to that industry.
H-1B is the visa classification given to Professional
employees to come work in US Companies.
Although all types of professions use this visa, the vast majority of
these visas are used by computer consulting companies for computer
professionals. The end user is the place
that the computer professional will actually work. Usually these are big
companies. These companies contract out
their work, and sometimes the intermediary companies enter into contracts with
others. Thus very often the company employing
the H-1B worker has one or more intermediaries between them and the end client. The petitioning consulting companies (hereinafter
petitioner) often change the employees resumes to suit a job, although the
employee may not have that skill. This
can be stopped if the end client can have a testing requirement to before accepting
someone for the job. Initially it will
be a burden to devise these tests, but then, that will ensure that their work
is done in an efficient way.
But the real problem is that there is a quota of
65,000 visas per year for H-1Bs (plus 20K for those who have US Masters) and there
are more than 233,000 petitions filed on the first day in 2015. So the Citizenship and Immigration Service
does a random lottery and the lucky 85 K get in. Then the Citizenship and Immigration Service
takes a long time to adjudicate these cases, and often it’s January of the
following year that the employee can get in and start working Thus employers
have to calculate their need and apply with projected rather than actual figure. Since these visas lead to Green Card
(Permanent Resident Card), they are coveted by employees. Thus many employees
seek employers to enter the lottery. The employees often pay money to the
employers to enter the lottery, which is of course against the law. The employers then file for the H-1B lottery
for these employees. By the time the
employee can make it to the United States, the project that was originally
applied for has already been completed.
Do H-1B employees take American jobs? Please note that the Government fees for H-1B
is 1575 to 4325 USD- per individual. Add
attorney’s fees to that. The Employer
has to pay the employee at least the Prevailing Wage, which is often higher
than local employees’ pay. And even if
it’s the same wage for three years, its still the same as an American worker. But we do have computer science graduates in
this country. They do not want to lead the lifestyle of the computer
consultant. The computer consultant is like a travelling Computer guru, who
moves from project to project. They may stay in Memphis for 6 months, followed
by Iowa City for 3 mts, followed by Houston for 5 mts. You get the
picture. They cannot have roots
anywhere. If they have families, the family has to be positioned in some place,
and they usually go back for the week end. But to make up for it, they work 12 hour days
from Monday to Thursday. It’s just a
hard life that Comp Sci grads from this country simply do not want.
Thus the solutions to these problems are:
1.
Do
away with the H-1B quota and let the market dictate need:
The market is a much better predictor
of demand than an artificial quota. The
quota forces employers to project their need for a whole year and file
accordingly. It also creates uncertainly
because of the lottery and creates artificial demand. Very often the petitioner
just has one or two big project and file 20 cases, even though the need maybe
5. They hope that at least 5 people get picked.
This of course leads to fraudulent practices. And there can be no guarantee which employee
will be lucky enough to get in. Without
the quota the optimally qualified available personnel, rather than the lucky
personnel will get the job.
2.
Create
a system whereby the HR director of the end user has to verify the employment
of the employee
The Department of Labor, to end fraud
in the Labor Certification program established a system where the Company has
to verify that the Labor certification is a real job that does exist in the
Company. The Citizenship and Immigration
service is testing an employer verification system. But they need to create a
simple program whereby the system sends out an e mail asking if this job
exist. The adjudication (which needs to
be done fast) will proceed upon a yes answer. If the e mail is fraud, then the petitioner
will be barred from using the H-1B program again, and the end user will pay a
fine.
3.
Do
Away with Control and Simeio issues:
The Obama administration created
complex and useless rules to curb H-1B fraud which do not work. In 2010, the Citizenship and Immigration
Service issued a memo that said these professional employees need to be
“controlled”. The Government tried to
say that if the petitioner does not control the employee, then they are not the
Employer. The Government then proceeded
to introduce this requirement ONLY to the computer consulting industry, and not
to the healthcare industry, which employ the same model. Just a simple e mail from the end user should
suffice. The “control” issue goes into
the business model of this industry, over which the Citizenship and Immigration
Service does not have jurisdiction.
Similarly in a 2015 case, Simeio, the
ruling was that if an H-1B employee changes job location, the employer has to
file an H-1B petition. As mentioned
above these H-1B employees change job locations very frequently. Thus the
Immigration Service is inundated with the H-1B petitions. The Government is
taking almost a year to adjudicate these petitions. By then the employee has moved three times,
making the adjudication of two of these petitions moot and a waste of
time.
These two measures are quixotic and serve no purpose
other than to harass employers and make attorneys rich. In order to curb fraud, the system should be
made simple, hassle free and fast to keep pace with the for profit industry.
Otherwise the Immigration code will quickly grow into something like the tax
code, complex and filled with loop holes.
For more information, please contact Houston Immigration Attorney, Annie Banerjee
