The Litany of Abuses Described by USCIS to the H-1B Program Besides to the Registration System in the Proposed Rule Are Eye-Opening

by Alan Lee, Esq.

This is the second of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

As said in Part 1, it is imperative that USCIS implement its proposed beneficiary centric registration system by the next lottery selection in Spring, or bring back the old system of petition filings complete with filing fees to ensure that organizations and beneficiaries actually have “skin in the game” rather than just being able to play by anteing up $10. The list of other abuses decried by USCIS with offered fixes in the proposed rule are not only eye-opening, but appear to mainly spring from the inept present registration system.

USCIS reveals not only how organizations and individuals game the system on selection, but how they afterwards work to make it all profitable as many of them do not have jobs available or the jobs will not be available in the near future.

For those who are overseas, companies delay the people coming here to the States until many months after they obtain the visas. If they do not have the jobs at all, the people can file for H-1B amendments with other companies if they can latch on. The more common situation is that the petitioning company files for an amendment to place them on other third parties’ jobsites rather than where they were supposed to go in the first place.

For those in the US where the companies do not have jobs, the people file for amendments with other companies or with the same company which is now assigning them to another jobsite. Because of this trend, USCIS is hot in the proposed regulation about the timely filing of amendments and that they include upfront evidence of maintenance of status.

Although left unsaid in the proposed regulation, people who are overseas would be eligible to file amendments if they have obtained the H-1B visas from the consulate, and those in the US would be able to do H-1B amendments after October 1 if the company did not withdraw the sponsorship.

USCIS is looking to crack down on the use of amendments for those in the US by emphasizing that they must give up front the evidence of maintenance of status. USCIS is clearly upset over this issue, but at this point is not saying that it will immediately reject or deny amended petitions that do not have this upfront evidence. 

It is also emphasizing that companies need to do amendments as per the law as we know it after the 2015 decision of Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), reiterating all the circumstances under which amendments are required, but also noting that amendment is not required where the job is in the same MSA (Metropolitan Statistical Area) or PMSA (Primary Metropolitan Statistical Area), but amendment has to be done even if it is in the CMSA (Consolidated Metropolitan Statistical Area). Apparently, many of these companies are not bothering to do amendments where the people are being assigned to different worksites outside the area of employment covered by the LCA.

It is very wary of identity fraud in the registration process in which people are able to register more than once because of different passports or by saying that they are stateless in one registration and giving a passport in a second application. USCIS proposes that there will be no excuses for not having a passport under the proposal,

On documentation ensuring that companies actually have jobs available, and that the employment is not speculative, DHS would only say that the burden does not mean demonstrating nonspeculative daily work assignments through the duration of the requested validity period; nor identifying and documenting the beneficiary’s specific day-to-day assignments; that it does not intend to limit validity periods based on the end date of contracts, work orders, itineraries, or similar documentation.

USCIS is asking for advice on how it can deal with preventing petitioners from receiving approval for speculative H-1B employment and to stop the practice of delaying H-1B cap subject beneficiaries’ employment in the US until a bona fide job opportunity materializes. It points out that although the regulations require petitioners to notify USCIS if a petition goes unused because the beneficiary does not apply for admission so that USCIS can revoke approval of the petition, the regulation does not include a deadline for admission or a reporting deadline. In thinking about a deadline for admission or a reporting deadline, USCIS acknowledges that the approach would not prevent a petitioner from circumventing the provision by filing an amended petition and further delaying admission, or by having the beneficiary enter the US one day before the deadline and then leaving shortly thereafter. USCIS is also thinking about creating a rebuttable presumption that a petitioner only had a speculative position available if certain circumstances occurred which might include delayed entry or filing an amended petition before the beneficiary would have been admitted to the US in H-1B status. It is clearly flustered by all the ways that people are running around the rules.

The springboard to these abuses is the current registration system allowing beneficiaries multiple opportunities to participate in the H-1B visa lottery, resulting in well over half of the beneficiaries, 408,891, of the 780,844 having multiple registrations in this past selection process. USCIS statistics on the FY 2023 selection showed that one beneficiary had 83 registrations. With an effective barrier in place, most of the above abuses would be lessened to such a degree that the above measures while needed might not be as urgent.

About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2023), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

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