October 6, 2009

USCIS releases new G-28 form; havoc ensues as numerous problems become evident

Posted by Vic Goel under USCIS | Tags: , , , , , , , , , , |
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File this one under the “If ain’t broke, don’t fix it” category.  A press release issued by U.S. Citizenship and Immigration Services (USCIS) on October 1, 2009 announced the publication of a newly revised Form G-28.  Soon thereafter, the new G-28 surfaced, and all Hell broke loose.  Literally.  For those who don’t know, the G-28 is the form used by attorneys to enter their appearance on behalf of a client in an immigration matter.  Since its issuance, several problems with the new form have been noted, although that doesn’t seem to be stopping the agency from plowing forward.  Simply put, the new form isn’t quite ready for prime time, and that’s likely to cause confusion and problems for immigration attorneys and their clients in the days ahead.

 The initial complaint about the new G-28 form was that it was being made mandatory with too short a grace period allowed for continued usage of the old version of the form.  Unfortunately, that appears to be just one of the problems.  Among the other issues identified so far are glitches that make it impossible to properly complete a G-28 to represent a business entity, problems with the entry of the client’s zip code, and most seriously, problems that seem to reflect some sort of furtive agency mission to make it as difficult as possible for USCIS customers to exercise their right to legal counsel. 

 As noted in the USCIS press release, “After Oct. 30, any prior versions of the Form G-28 that are received will be considered invalid.”  Thus, USCIS has granted the public just 30 days to begin using the new form.  In practice, that’s not enough lead time, since there may be many instances where a G-28 has already been executed on the old form, and a client is not available to complete the new form.  In time-sensitive cases, this could lead to delays that could have been easily avoided with some advance notice from USCIS or through use of a longer grace period during which the old version of the G-28 would be accepted.  Interestingly, the USCIS announcement unveiling the new G-28 came as a bit of a surprise to many who felt that the agency did not provide adequate notice that implementation of the new form was imminent.  In reality, the Department of Homeland Security (DHS) provided plenty of notice that a new G-28 was coming, it’s just that it was done through a Federal Register notice back in August 2008—almost 14 months earlier.  The inordinate delay in implementation caused the issue to fall from most radar screens, and was then exacerbated by DHS/USCIS maintaining radio silence on the subject.  It seems like no one knew when the new G-28 would be unveiled until the USCIS announcement was posted on the agency’s snazzy new website on October 1, 2009.  So much for transparency in government.

 Another issue causing much concern is that the new form seems to require attorneys and clients to execute G-28s that are quite specific about the exact matter that is the subject of the attorney’s representation.  On the old version of the form, attorneys and clients had become accustomed to annotating the G-28 to indicate that the attorney was entering his appearance in “All Immigration Matters” on behalf of a client.  That doesn’t seem possible with the new version of the form, which requires marking the form with specific USCIS form numbers that the attorney’s appearance is related to.  The new form also has separate areas that would be filled out if the matter is before Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP).  In practice, this effectively limits the scope of what matters an attorney may be recognized or considered to represent a client in.  While this might not seem like a big deal at first glance, it could have serious implications where related issues are handled by different components of DHS, such as when a file is transferred from USCIS to ICE for investigation.

 Another potentially serious problem is the absence of an option to enter an attorney’s appearance on behalf of the beneficiary of an immigration case.  The new version of the form only seems to recognize a “Principal Petitioner, Applicant, or Respondent,” but not a beneficiary.  While this issue (among others) was raised and discussed in the American Immigration Lawyers Association’s (AILA) letters submitted to DHS during the notice and comment period in September 2008 and again in February 2009, the agency apparently still finds it unnecessary for a beneficiary to need legal representation.  In both letters, AILA noted

 Unlike the current G-28, which permits the entry of appearance of an attorney for a beneficiary, the proposed G-28 eliminates the check box for the beneficiary. The Service relies on 8 CFR §103.2(a)(3), which provides that a beneficiary is not a “party.” This interpretation of the right to representation is too narrowly drawn. For example, beneficiaries may be called for the purpose of giving testimony or other evidence under 8 CFR §103.2(b)(9), at which point the right to representation provided in 8 CFR §292.5(b) attaches. Moreover, in many petition proceedings, evidence from the beneficiary or testimony of the beneficiary is material to the petitioner’s case. Additionally, in nonimmigrant petition proceedings on Form I-129, several of the actions requested, e.g., change of the beneficiary’s status, extension of the beneficiary’s stay, amendment of the petition and change of the beneficiary’s stay, involve actions in which the beneficiary becomes an “applicant.” And, with respect to “permanent portability” under INA §204(j), AILA continues to urge that the beneficiary in an I-140 proceeding whose I-485 application has been pending for 180 days has acquired a vested interest in the outcome of the I-140 petition proceeding.

 Given the massive effort underway to combat fraud in H-1B and other business immigration cases through routine USCIS worksite visits and ICE enforcement actions where investigators question beneficiaries, omission of a “beneficiary” option on the new G-28 seems inappropriate.  The DHS position, as stated in AILA’s letters, raises due process concerns, particularly since the beneficiaries could face criminal prosecution where they are a party to an alleged fraud.  This is also an obvious problem in the context of a Form I-130 petition filed by one spouse on behalf of the other where USCIS conducts separate interviews of the petitioner and beneficiary.  Will USCIS, ICE or CBP recognize a G-28 filed to enter my appearance as the attorney for the beneficiary if there’s no spot on the form to designate the same?  It’s not an issue that I want left to the discretion of a potentially adverse party. 

A related problem on the new G-28 is that the field provided for the name of the ”Principal Petitioner, Applicant, or Respondent” only includes space for a first name, middle name, and last name.  How exactly will a business entity, which has no first, middle, or last name complete this form and avail itself of counsel?  This seems to be an incredible oversight.

 A final glitch involves the fillable PDF version of the G-28 posted on USCIS’ website.  In the field provided for the Petitioner/Applicant/Respondent’s five digit postal zip code, the new form treats the zip code as a mathematical number and inserts a comma between the second and third digits.  Thus, my zip code of 20190 appears on the form as “20,190.”  Now all we need is a dollar sign in front of the number, and it will probably match up with the H-1B and L-1 filing fees that Senators Chuck Grassley (R-Iowa), Dick Durbin (D-Illinois), and Bernie Sanders (I-Vermont) will propose once the Comprehensive Immigration Reform bill hits the Senate floor.

What makes these problems most exasperating is that no one seemed to be having problems with the old version of the G-28.  While the form has received minor facelifts over the years, it has remained largely unchanged in form and function for at least 25 years, and I can’t ever recall anyone saying it needed to be put out to pasture.  So why did the G-28 get revised?  Was it really necessary to embark on such a drastic change in its design and function?  In an era when our immigration agencies have so many problem areas to fix, it seems like tinkering with the G-28 was at best a foolish lark, and at worst, more evidence of the pervasive culture of “no” that immigration attorneys have long complained about.  I’m still hoping it’s the former and not the latter.

 

October 4, 2009

BusinessWeek takes aim at crooked H-1B employers; lives with collateral damage

Posted by Vic Goel under H-1B Visas | Tags: , , |
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BusinessWeekBusinessWeek 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.

 

October 1, 2009

Grassley Continues Crusade Against H-1B Visas

Posted by Vic Goel under H-1B Visas | Tags: , , , |
1 Comment 

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.