Grassley Continues Crusade Against H-1B Visas

United States Senator Chuck Grassley (R-Iowa) reeled back and took another big swing at the H-1B visa program this week.  In a letter addressed to Alejandro Mayorkas, the new Director of U.S. Citizenship and Immigration Services (USCIS), Senator Grassley called out USCIS for failing to do enough to combat fraud in the H-1B program one year after the agency issued its H-1B Benefit Fraud and Compliance Assessment report. The good senator went on to rebuke Mayorkas for apparently dragging his heels in not resolving H-1B fraud problems since being handed the job.

Of course, Senator Grassley knows full well that Mayorkas was sworn in just 48 days ago, but he still had the gumption to say,

When we met prior to your confirmation hearing, you committed to rooting out fraud and abuse in all visa programs, but specifically the H-1B visa program.  Upon being confirmed, you also answered several questions for the record, including ones that I submitted about the H-1B visa program.  You said, “I believe the existence of fraud in the H-1B visa program needs to be addressed forcefully.”   Your statement complements that made by Secretary Napolitano herself in her testimony before the Senate Judiciary Committee last May: “From an enforcement standpoint, my priority is to make sure that there’s not fraud occurring within the H-1B program at all.”  You also said you would promptly conduct a thorough review of USCIS programs to identify areas in need of improvement and in need of increased focus, and that you would develop a close working relationship with ICE to ensure that fraud and abuse are addressed through criminal prosecution.  I look forward to hearing about the thorough review that you promised to undertake as soon as you were confirmed.

So much for catching more flies with honey–Senator Grassley wasted no time in very publicly throwing down the gauntlet squarely at Director Mayorkas.

While the chiding nature of the Grassley correspondence is one story, the  more interesting story is that despite his rancor the senator is apparently unaware that USCIS unilaterally turned up the heat on H-1B employers back in April 2008, when it began issuing exceedingly detailed Requests for Evidence (RFEs) to employers who filed H-1B visa petitions for employees who would perform work at locations classified as client sites.  Thus, by the time Senator Grassley issued his letter to Mayorkas, USCIS had been requesting exactly the same type of evidence he called for in his letter for about a year and a half.

So why did Senator Grassley call out USCIS and Mayorkas if they are already doing what he wants them to do?  Is the senator really that uninformed about an issue so near and dear to his heart?  Possibly, but I doubt it.

Curiously, Senator Grassley is clued in enough to “…strongly encourage USCIS to request from petitioners that have stated they will be assigning H-1B workers to third-party worksites copies of relevant portions of any and all contracts or agreements between the petitioning company and the third-party worksites that prove the foreign workers will actually have work upon arrival and that the work will in fact be performed at the places described in the approved LCA and in the itinerary submitted with the petition,”  which is exactly what they have been doing for the past 18 months.  Even more interestingly, he’s also aware that “no guidance has been provided to [USCIS] adjudicators, or to the public, about additional evidence to be gathered from [H-1B] petitioners.”  I’m guessing that if Senator Grassley knows these issues so well, he probably also knows that USCIS has been getting a lot of well deserved flak about the overreaching nature of its RFEs in such cases.

Based on what I’ve heard through the grapevine, the complaints have caused some within USCIS to question whether the RFEs are going too far, and whether they need to be toned down.  Some have even suggested that the reason USCIS has yet to issue formal guidance to adjudicators (as noted by Grassley) is due to internal disagreement on whether the type and amount of evidence that the RFEs have been requiring some employers to submit exceeds the preponderance of the evidence standard that is applicable in most immigration cases.   It’s likely that Mayorkas, a thoughtful and highly skilled attorney, sees the inherent problem in requiring uneven standards of evidence from different classes of employers.  If so, it’s my guess that Grassley’s letter is meant to provide political muscle for those within USCIS who favor continuing or even expanding the already overbroad nature of the RFEs.

I may be reading more into this than I should, but the text of the letter and the fact that Senator Grassley issued a press release about it suggest that there may be more to it than first meets the eye.

 

About Vic Goel

Vic Goel is Managing Partner of Goel & Anderson. His practice includes strategic immigration planning to assist domestic and multinational corporations with recruitment and hiring of international professionals, highly skilled technicians, managers, executives, and students. Vic has been selected by his peers for inclusion in The Best Lawyers in America in the field of Immigration Law, and was awarded a Distinguished Peer Review Rating for legal ability and ethical standards from the Martindale-Hubbell Law Directory. He has also been selected for inclusion in The International Who’s Who of Corporate Immigration Lawyers, a publication that identifies the preeminent lawyers in the field through annual peer recommendations. He can be contacted at vic.goel@goellaw.com.
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