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Greg Siskind on Immigration Law and Policy

USCIS DOCUMENT REVEALS OFFICIAL POLICY TO DISCRIMINATE AGAINST SMALL BUSINESSES IN H-1B CASES

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How ironic to find this out on a day when the President announced a policy to aid small businesses.

U.S. President Barack Obama will announce steps on Monday to make it easier for small business owners to borrow money, using $730 million in stimulus funds to cut lending
fees, boost loan guarantees and expand other programs, officials said.


"We know that small businesses are the engine of growth in the economy," said Christina Romer, chair of the White House Council of Economic Advisers. "We absolutely want to do things to help them."

An immigration lawyer recently received an internal work sheet inadvertantly included with a petition denial that advises USCIS examiners when to refer cases to the Center Fraud Detection Operation (CFDO) for further investigation on the possibility of fraud. The document details many criteria that could potentially show fraud - multiple filings in comparison to the number of employees, suspect documents, questionable education credentials, etc. That's all well and good.

But the part that made my eyes pop open is the following language in the instructions:

Instructions: In order to ensure an actionable fraud referral is sent to the Center for Fraud Detection Operation (CFDO), all petitions that possess 2 of the 3  10/25/10 criteria must be referred to the CFDO:

__ Gross Annual Income less than $10 million
__ Company claims less than 25 employees
__ Company established for less than 10 years


In other words, a good portion of the nation's small businesses - one has to imagine that a huge portion will not meet two of these three tests (the 10/25/10 tests) - is subject to a much tougher H-1B application process than that facing large company employers.

In bold type on the bottom of the form are the words "DO NOT RELEASE UNDER FOIA". FOIA, for those of you who don't know, stands for Freedom of Information Act. And if I was institutionalizing discrimination against the nation's small employers, I probably wouldn't want pesky reporters and nosy immigration advocated asking questions either.

This is not really new policy for USCIS. Try filing an L-1 petition if you're a small company. The basic view of USCIS is that companies that are small are "fly-by-night" operations that don't deserve the same benefits as large emploeyrs. The last White House either didn't realize this was going on, didn't care or just couldn't get control over a USCIS that seems to often be completely out of touch.

I hope the Obama White House is serious when it says it is committed to helping small businesses succeed. Secretary Napolitano and President Obama need to make it clear to USCIS that policies that punish employer petitioners merely because they are small businesses will not be tolerated.

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  1. gg's Avatar
    Hi Greg,

    This is more like stereotyping than discrimination

    Its common knowledge that the majority of immigration fraud is committed by small companies. Only recently USCIS has shown willingness to go after these companies, especially after the so called "flower campaign" which seemed to have rubbed some folks at the USCIS on the wrong side.

    I know a lot of people on H1B's who have come to the US through fake Indian companies and the kind of emotional trauma they go through on a daily basis. Its time these fake companies are shut down for good.


    This is not discrimination but more like stereotyping. Just as we see at the airports when Middle Eastern or South Asian looking folks are subjected to special treatment.
  2. George's Avatar
    "Just as we see at the airports when Middle Eastern or South Asian looking folks are subjected to special treatment."

    Know a Tamil South Asian friend who is darker than most African Americans and looks near black. However, when he shaves his head before travelling, TSA thinks he is black and gives him no problem. But, when he has long hair, they think he is moslem and pulls him over for special treatment. Then there is a state rep of Indian origin in a southern state who managed to become a member of an all white country club courtesy of her American husbamd fifteen years ago (she also looks pretty near white!). The fellow members always thought she was white until Governor Sanford or the state GOP chairman (not sure exactly who) opened his mouth and said that she was of Indian origin. The family had to resign their membership!

    We have this situation all across the country!

  3. Alix's Avatar
    What really irks me is the part about not releasing under FOIA.

    What I cannot stand are *two bit* bureucrats trying to circumvent the will of people by running their own fiefdom outside what the elective representatives have mandated.

    If a policy or precedure exists, acknowledge it. If you are going to keep it a secret, have the johns of stating it and let the court decide whether keeping it secret is warranted or not.

    A long time ago, a senator or congressman wrote a letter to a federal agency in which he noted that in some countries bureucracy is so strong that it simply ignores the will of people as dictated by the legislature. He stated that this cannot be allowed to become so in USA.

  4. JoeF's Avatar
    "What really irks me is the part about not releasing under FOIA."

    Indeed. They knew that this would be a PR nightmare. And as typical bureaucrats, they don't like things like FOIA, since it makes them accountable. So, they just say, this is secret.
    Under the previous administration, they may have gotten away with such crap, but I really hope that the new administration is on the ball here.
  5. LegalImmi's Avatar
    They should also target big IT companies like IBM, Infosys, Wipro etc. These guys apply hundreds of h1-b well in advance in anticipation of demand in the future.

    Many of the candidates don't enter USA even after more than a year of stamping. These ppl have them in India or elsewhere as standby. There are some who never come to US. These are wasted h1-b and some really needy persons are denied h1-b.
  6. supacool's Avatar
    Can you please provide a snapshot of that original letter?
  7. KTR's Avatar
    Hi,

    The bodyshoppers/small consulting companies that usually runs from their respective homes or virtual offices and are involved in the fraud that is going on for years, are making it tougher for people who go by rules.

    The innocent people who are suffering due to the fraudulent practices followed by these companies, would welcome any legislation or new policy that would take a close look how they operate starting from filing of H1-B.

  8. D's Avatar
    "Only recently USCIS has shown willingness to go after these companies, especially after the so called "flower campaign" which seemed to have rubbed some folks at the USCIS on the wrong side.
    "

    This sounds more like the country I want to leave .... So much for first world bureaucracy.. Flower campaign was done by individuals not companies... If the babus(bureaucrats) are correct why they rolled back the july 07 visa bulletin decisions?
  9. gg's Avatar
    " Flower campaign was done by individuals not companies "

    Have you ever heard of "root cause analysis" .. thats what USCIS appears to be doing!!
  10. D's Avatar
    "Have you ever heard of "root cause analysis" .. thats what USCIS appears to be doing!!"

    "This is more like stereotyping than discrimination"

    Looks like you dont have any problem with stereotyping either...


    "Just as we see at the airports when Middle Eastern or South Asian looking folks are subjected to special treatment."

    For me it is discrimination ... Everyone need to worry when goverment agencies systemically discriminate against a group of people...

  11. D's Avatar
    I am one of those who sent flowers to USCIS . Lets see if they reject my application because of that. Bureaucrats are hurt because their wrong decisions are protested... this sounds so much like what people call "third world"..


    I would rather get my application rejected now rather than wait 5 more years and get rejected...


  12. Hi's Avatar
    The fake certainly got to go and will - but not necessarily small companies. Infact, its a true oppurtunity for true entrepreneurs who can create innovative products, services and they would actually realise their dreams happening rather than acting as mere bodyshoppers.

    The best way to punish them would be to send them out of country without charges.

    However, sending out these people on H1B might become a burden for companies especially cost, distance and productivity vice.These people could do wonders for their countries with all the skills.

    And americans should worry about their spending ad not their govts. For example, In health care, USA is 7 times expensive than asian countries - ofcourse USA guratees 99% results with or without insurance at that moment. The huge bureacracy is burdening the systsem
  13. doc-waiting's Avatar
    gg:

    Please do not be ridiculous. The flower campaign was not "so called", it was exactly what it said. Many of us sent flowers. And I refuse to be terrfied for it. You can cower in fear all you want. If you believe what you are saying you may as well leave voluntarilly. The July bulletin brought many benefits for those that would have waited years more to get an EAD or AP. It allowed job changes and spousal work benefits. Just because you did not need it, please don't diss the rare bit of courage shown by the EB community. Anyway IV orchestrated that campaign, not the individuals.
  14. D's Avatar
    "Anyway IV orchestrated that campaign, not the individuals"

    I correct myself ..IV did it not individuals or "body shoppers"
  15. JB's Avatar
    There is difference between a employee strength and a organization strength. Agreed employee strength leads to organization strength. But organization needs to put contribution towards the employees too. Most of H1bs are filed by Indian companies. Most of the time these comp simply bring guys on H1 visa with some basic training provided in India and sell them to the client as experts! Now client and employee work together and middleman Indian company is just getting it's cut. This immigrant employee earns money (perspective is foreign exchange rate factor) and is happy to get peanuts from middleman and whereas client pays much higher to middleman.

    Loophole #1: These middleman a.k.a consulting companies a.k.a. bodyshoppers are actually selling/offering contracting positions with cover of fulltime positions.

    Loophole #2: Middleman companies bring in employees with L1 visa, but they work as contractor to client in USA! L1 visa is for working on companies duties and NOT for client.

    Loophole #3: Middleman companies bring in individuals on B1 visa for working short term (3 months).

    Also these individuals are rotated between USA and India and argument is that everyone in team should get chance to work onsite (USA). This creates hype visa shortage every year.

    Now if clients would simply put in contract clause that all employees (contractors) working should provide legal documentation of WORK visa with middleman company and there is no wrong doing. I bet that 80% of bodyshopping business would come to halt.

    Also ever wonder why in Indian companies there are no (or less than 10%) employees who are Whites/Blacks?
  16. cynical's Avatar
    JB:

    "Also ever wonder why in Indian companies there are no (or less than 10%) employees who are Whites/Blacks?"

    You have already answered your own question. It has nothing to do with being white or black. The employees that are satisfied with the lower pay (thanks to currency conversion) are neither white nor black. They are also controlled by the "middleman" as their visa status depends on his/her company.
    These guys only look at the bottom line. If they find pliable workers from another country with no langualge or other issues that are easily recruitable- they will get them. watch out, it may yet happen as rates for Indian workers go up.
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