USIS has announced to the public the existence of the VIBE program. Employers should be aware of the fact that USCIS and DOL may use VIBE and other sources of data to confirm the validity and nature of the Employer's business before issuing decisions. USCIS uses VIBE at the I-140 stage.
VIBE relies on commercially available data from an independent organization to validate basic information about companies or organizations petitioning to employ alien workers. Currently, USCIS uses Dun and Bradstreet to obtain this information. USCIS also states that if VIBE information is insufficient, an RFE for additional documentation is appropriate.
Information available through VIBE sources may relate to the Employer’s business activities, North American Industry Classification System code, trade payment information and status, financial standing including sales volume and credit standing, number of employees including on-site and globally, relationships with other entities including foreign affiliates, status such as single entity, branch subsidiary or headquarters, ownership and legal status such as LLC, partnership or corporation, Company executives, Date of establishment as a business entity, and current physical address.
VIBE information is used to adjudicate immigrant visa petition employment categories, including EB-1, EB-2, EB-3, SD1 (Minister of Religion), and SR1 (Non-minister in a religious occupation or vocation). Although non-immigrant visas are not the subject of this BLOG, many applicants for PERM may be working in the US with non-immigrant visas such as E-1, E-2, E-3,H-1B, H-1B1, H-1B2 (related to Department of Defense), H-1B3, H-2A, H-2B, H-3, L-1A, L-1B, L-Z Blanket L, Q-1, R-1 and TN NAFTA professional from Canada or Mexico – all of which are subject to VIBE checks.
Not included in the VIBE program are some employment categories such as E11 individuals of extraordinary ability, E21 National interest waiver, EB-5, O Individuals with extraordinary ability or achievement including essential support personnel, and P Internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program including essential support personnel.
In actual fact, DOL and USCIS have been checking employer background for many years, but not as systematically as is now possible under the VIBE program.
Attorneys who undertake representation of Employers should routinely check with the secretary of state to confirm the corporate or business status of the employment entity and obtain a copy of the employer’s income tax returns to see if the information is complete, correct and viable.
The PERM Form 9089 and immigrant visa petitions I-140 and I-360 include questions about the employer's status, but the Dun and Bradstreet reports are more comprehensive. Although the USCIS may use full D & B reports in given cases, it does not appear that such comprehensive reports are used in all cases.
Dun and Bradstreet offers information to the government and private individuals as a commercial service. Both Employers and attorneys may obtain reports from D & B, however it is always possible that the information obtained contained in these reports is out of date or incorrect. When that occurs, employers will have to provide substantial documentation to DOL or USCIS to overcome the presumption raised by the incorrect and/or request Dun and Bradstreet to make corrections. It is unclear what percentage of VIBE reports contain database errors and whether corrections to those databases may be easily made.
The VIBE program is essentially intended to check the commercial statis of the employer. However, aside from VIBE and other business validation checks, Employers are reminded that all PERM applications must always comply with federal, state and local legal requirements, including requirements like zoning, licensing, unemployment insurance and others.