Houston, TX (Law Firm Newswire) March 8, 2016 - The H-1B visa program has been coming under attack lately. Ted Cruz wants a moratorium on H-1B visas by stopping the program in the hopes that the problem will go away.
Most frauds in the H-1B visa are likely perpetrated by the computer consulting industry. “Is there fraud in the H-1B program? Yes. But the way to stop it is not through a moratorium,” said well-respected Houston immigration attorney, Annie Banerjee.
H-1B is the visa classification given to professional workers to work in US Companies. Big computer consulting companies, the end user where employees will work, usually use the vast majority of the H-1B visas for computer professionals.
The problem? The main issue is the quote of 65,000 visas per year for H-1Bs and the 20,000 visas for those with US Masters. There were more than 233,000 petitions filed on the first day in 2015. “How many petitioners got in? About 85,000 thanks to the random lottery held by the Citizenship and Immigration Service. Those workers wait at least a year for their cases to be adjudicated, meaning employers figure out their worker requirements and apply using projected figures, not actual figures,” Banerjee explained.
Workers seeking a permanent green card, the result of a successful H-1B application, often find employers and pay them to enter the lottery, which is illegal. Additionally, by the time all is said and done, even if the employer did enter the lottery, the original posted project is already completed. Once workers succeed in getting to the U.S. their jobs as computer consultants means they have no place to call home as they are on the road to various locations to work on whatever project next needs their skills. Only foreign workers are prepared to labor under those conditions with long, gruelling hours and not much time to spend with their families.
“The solution to these various problems is easy, and it is not shutting the program down and waiting for the issues to go away, a typical Republican response. With regard to the quota issues, simply do away with the H-1B quota and let the market determine the need. Reality is a better predictor of demand rather than an artificial quota,” Banerjee indicated.
When it comes to verifying the employment of a worker, create a system whereby the Human Resources director of the end user (the computer company) has to check and verify the worker’s employment. To end fraud in the Labor Certification program set up a system where the end user must verify that the labor certification is a real job that actually exists in the company. Once the “real job” is verified, adjudication takes place faster. If the “real job” is a fraud, the petitioning worker is barred from the H-1B program permanently and the end user is fined.
“And lastly, do away with control and SIMEIO issues,” added Banerjee. “Simply put, the government has zero jurisdiction over controlling any industry in regard to how they hire workers. It is ridiculous to have the government send out a memo saying that if the petitioner does not control a worker/employee, then they are not the employer.” The best solution is a plain and simple email from the end user/employer.
Making things simple is the best way to approach the SIMEIO conundrum as well. That particular ruling suggested that if an H-1B worker changes job locations, the employer must file an H-1B petition. By the time the petition was adjudicated the worker could have already moved three times. Why waste time on useless paperwork? Instead, spend time understanding the reality of the needs of the computer technology industry and work with them, not against them.
“In order to curb fraud, the system should be made simple, hassle free and fast to keep pace with the for profit industry. Otherwise the Immigration code may quickly grow into something like the tax code, complex and filled with loopholes,” said Banerjee.
Law Offices of Annie Banerjee
131 Brooks Street, Suite #300
Sugar Land, Texas 77478
Phone: (281) 242-9139