BusinessWeek magazine’s latest cover story, titled “America’s High-Tech Sweatshops,” is an in-depth examination of the unscrupulous tactics that crooked employers use to commit H-1B visa fraud. While the BusinessWeek article hardly qualifies as fair and balanced, I still give it credit for shining a glaring light on the practices of a small group of bad apples who have given the H-1B visa program a very black eye. That said, I really wish they had made at least some effort to present a balanced discussion of this hot button issue.
H-1B fraud and abuse is real, and although it is nowhere near as pervasive as the anti-H-1B militia would have you believe, I wholeheartedly support measures to identify and prosecute employers who purposely violate the many H-1B statutes and regulations that are designed to protect U.S. workers and H-1B employees alike. At the same time, I don’t support the notion that we need a reform of the H-1B program to prevent abuse. The existing H-1B rules are generally well thought out, and are loaded with enforcement measures and penalties that can put violators in a world of pain. The problem is that H-1B enforcement has been under utilized until recently.
In my law practice, I’ve seen both sides of this issue. My firm has assisted H-1B employers involved in government investigations, and we have also helped H-1B workers who were cheated by unscrupulous employers. As an attorney who regularly works with H-1B employers and their employees, we do everything possible to ensure that employers are not just aware, but also serious about complying with their responsibilities. My experience has been that reputable companies, large and small, make every effort to comply with the letter and spirit of the law. In situations where we have represented employees going after crooked H-1B employers, I’ve generally come to the conclusion that unscrupulous employers engage in unlawful activity because they are dishonest and don’t think they will get caught.
Of course, that seems to be changing. Today, we are seeing more H-1B investigations being conducted by the Department of Labor, U.S. Citizenship and Immigration Services, and Immigration and Customs Enforcement. There have been several high profile prosecutions of unscrupulous H-1B employers in recent memory, and the perception that the crooks will get caught has them running scared. The fact is that the current law has more than enough built-in enforcement measures to root out the bad guys, but previous government efforts to use them have been underfunded and so infrequent that enough instances of outright fraud occurred to give rise to the notion that all H-1B employers are crooks and all H-1B employees are indentured servants. That’s obviously not the case, but the perception remains, and it is bolstered by articles like BusinessWeek’s.
As I mentioned earlier, I really do credit BusinessWeek for calling attention to the practices of crooked H-1B employers. I also, however, take issue with BusinessWeek’s failure to present a balanced discussion. The article focuses on many still pending cases, and while the allegations cited are certainly troubling, they remain unproven. It also bears noting that the government cases against the employers mentioned in the article did not arise from thin air; they came about as a result of the government’s ability to enforce strong existing regulations. BusinessWeek could have done more to point out that the practices outlined in the article are illegal under the existing law. Another significant criticism I have is that the article and accompanying video features comments from noted H-1B program critics such as Senator Chuck Grassley (R-Iowa), Ron Hira, and John Miano, but no commentary from pro-immigration advocates or subject matter experts with differing opinions. The article even fails to include comments from legitimate H-1B employers and employees, thus leaving readers with the impression that the shenanigans of a small portion of crooks (both unscrupulous employers and fraudster employees) are widespread.
Without question, fraud is a stain on the H-1B program that negatively affects honest and legitimate employers and employees by subjecting them to suspicion, additional fees, and increased scrutiny. Those who operate outside the law only feel its impact if subjected to enforcement, but their abuses cause the imposition of harsh legislation that disproportionately affects those who do play by the rules. In the end, this makes BusinessWeek’s effort somewhat bittersweet, and casts genuine doubts upon its objectivity. I’m thrilled to see their in-depth effort to expose crooks, but am also disappointed by their failure to present the story in a more balanced manner that would allow casual observers to grasp that H-1B fraud is the exception, not the norm.