H-1B Petitions under Increased Scrutiny

As of June 1, 2012, the USCIS has accepted approximately 55,600 H-1B petitions subject to the regular cap of 65,000. Cap-subject petitions were being filed at an approximate rate of 1,800 per day from May 28. The master’s degree quota is also quickly filling up, with 18,700 out of 20,000 petitions already filed.

It is anticipated that H-1B visas for this fiscal year will run out before the middle of June. Employers who are planning to file cap-subject petitions should therefore complete their filings soon to ensure that their H-1B hiring needs are met. Otherwise, new H-1B workers would have to wait until October 1, 2013. Employees who already hold H-1B status are generally not counted against the cap and a petition to extend their status can be filed anytime.

A USCIS memorandum released to the public recently serves as a reminder to employers to be careful in completing the requirements for their H-1B petitions.

In the Memorandum dated October 21, 2008, adjudication officers are instructed to review more closely the H-1B filings of certain types of petitioners for possible fraud or violation of law. Petitioners with a gross annual income of less than $10 million, or which employ 25 employees or less, or whose business was established within the last 10 years, have been found to be more likely to have engaged in fraud or technical violations (also referred to as the “10/25/10” formula).

If a petitioner has two out of three attributes in 10/25/10 formula, the adjudication officer is directed to refer the petition to the fraud detection unit if there is at least one other misrepresentation in the petition, such as: fraudulent information or forged documents; if the business is found to be non-existent (based on an independent review that reveals fake or inconsistent addresses, questionable organizational chart, business zoning inconsistencies, and website information); or if the evidence of the job duties or the beneficiary’s qualifications is questionable (e.g., unsigned work experience letters, missing addresses and telephone numbers, and discrepancies in the beneficiary’s skills, education or age).

Regardless of the presence of any of these factors, if a petitioner has been referred to investigation by the Immigration and Customs Enforcement (ICE), or if the petitioner or alien is the subject of an ongoing ICE investigation, the guidance states that the petition must be referred to the fraud detection or background check unit.

It also identifies several ways by which petitioners who meet the 10/25/10 formula commit technical violations. Among the red flags listed are the following: physical job location is not listed on the I-129 form or on the labor condition application; mismatch between the salary and the prevailing wage; and misrepresentations on the beneficiary’s immigration status.

The USCIS also pays attention to any inconsistency between the offered job and the normal activities of the business, as well as between the facility and the type of work to be performed (e.g. petitioner claims to have 100 employees but the facility is in a residential zone).

In these cases of possible technical violations, the adjudication officer cannot approve the petition until the potential violation of law is resolved through a request for evidence, intent to deny or intent to revoke.

The memorandum sheds light on the agency’s review process and probably explains the increased H-1B denials despite the absence of any change in the law. It was made public as a result of a lawsuit under the Freedom of Information Act.