WASHINGTON – One year after an internal assessment showed extensive fraud and abuse in the H-1B visa program, Senator Chuck Grassley today is asking U.S. Citizenship and Immigration Services to hold employers accountable by requesting evidence from petitioners that H-1B visa holders actually have a job waiting for them in the United States.
In his letter to the director of U.S. Citizenship and Immigration Services,
Alejandro Mayorkas, Grassley cited an Iowa company that was recently indicted
for not having jobs available for the H-1B workers they petitioned for,
and placing them in non-pay status upon arrival in the United States.
Grassley also noted that the business allegedly submitted Labor Condition
Applications with the U.S. Department of Labor that stated prevailing
wage data for a location in Iowa rather than the higher
prevailing wage for the location outside Iowa where the worker would actually
be employed. “The United States is in need of an immigration overhaul.
Porous borders, shoddy workplace enforcement, and fraud-heavy guest worker
programs all contribute to our illegal immigration problems. We don’t
need a long, arduous legislative process to get at some of the problems.
The agency can take immediate steps to eliminate fraud in the H-1B program,
including cracking down on body shops that do not comply with the intent
of the law. Employers need to be held accountable so that foreign workers
are not flooding the market, depressing wages, and taking jobs from qualified
Americans,” Grassley said. “Asking the right questions and
requesting the necessary documents will go a long way in getting out the
fraud in the H-1B program.”
Grassley also asked for an update on the steps being taken U.S. Citizenship
and Immigration Services to alleviate other problems found in the 2008
benefits fraud and compliance assessment. The internal report found that
more than 20 percent of petitions reviewed were based on fraud. Grassley
has proposed several legislative changes to the program, but says this
is something that can be done administratively to get at the fraud perpetrated
Here is a copy of the text of the letter to Mayorkas.
September 29, 2009
The Honorable Alejandro Mayorkas
U.S. Citizenship and Immigration Services
Department of Homeland Security
Dear Director Mayorkas:
It’s been one year since U.S. Citizenship and Immigration Services
(USCIS) released its benefits fraud and compliance assessment of the H-1B
Non-immigrant Visa Program. This report evaluated the integrity of the
H-1B visa program by reviewing a sample of petitions and by taking a comprehensive
look at all aspects of the petition process. Unfortunately, the assessment
showed that 20.7% of visa cases reviewed were identified as having outright
fraud or other program violations associated with them.
Upon release of the benefits fraud assessment, I wrote to Acting Director
Jonathan Scharfen to ask what steps USCIS had taken or would take to restore
integrity in the program. Acting Director Scharfen reported to me that
the agency had issued internal field guidance informing adjudicators of
the findings and instructing them to make changes to how they adjudicate
While I appreciate the steps taken to alert USCIS Service Center adjudicators
about the report and fraud indicators to be watchful for, I am surprised
that no guidance has been provided to adjudicators, or to the public,
about additional evidence to be gathered from petitioners. Adjudicators
were told to “seek to resolve any and all issues through a Request
for Evidence” but the guidance did not specify the evidence that
should be requested of applicants. One of the changes that USCIS was considering,
per Acting Director Scharfen, was clarifying what documentation must be
submitted when the alien will be assigned by the H-1B petitioner to a
We have seen substantial fraud and program violations by employers who
bring in H-1B visa holders and then outsource them to other worksites.
Such was the case with the indictment of Vision Systems Group, Inc. earlier
this year in my home state. U.S. Immigration and Customs Enforcement alleges
that the company did not have jobs available for the H-1B workers they
petitioned for, and placed them in non-pay status upon arrival in the
United States. Additionally, Vision Systems allegedly submitted Labor
Condition Applications (LCAs) with the U.S. Department of Labor (DOL)
that stated prevailing wage data for a location in Iowa rather than the
higher prevailing wage for the location outside Iowa where the worker
would actually be employed.
I seek your commitment to tackle this problem immediately. Simply put,
adjudicators should be asking companies up front for evidence that H-1B
visa holders actually have a job awaiting them in the U.S., i.e. that
workers are not coming in only to be “benched” by employers
and that the job the workers are filling is the same job and in the same
location as the lob/location described in the LCA approved by DOL. I 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. This evidentiary requirement should be instituted immediately
so that USCIS can ensure that H-1B workers are filling true vacancies
rather than taking jobs from qualified Americans.
Acting Director Scharfen also noted that the agency was considering other
anti-fraud initiatives, including: changing the I-29 petition form; clarifying
when a petitioner must file an amended H-1B petition based on a material
change in employment; modifying the H-1B evidentiary requirements; prohibiting
a petitioner from passing any fee associated with an H-1B petition to
the beneficiary; and prohibiting subsequent filings by those who previously
were found to have committed fraud in an attempt gain an immigration benefit.
I would like an update on these efforts that were being considered by
USCIS, including detailed explanations as to why any of them have been
shelved or not implemented in the last year.
Acting Director Scharfen also reported that USCIS would “soon begin
using independent, open source data available through commercial sources
to obtain information regarding the petitioner that would be relevant
to the adjudication of the petition.” Has any action on this “independent
documentation” effort taken place? Do you, as the new Director,
believe that such an initiative is worthwhile, efficient, and necessary?
In addition to the above-mentioned issues, I would like to know what other
steps you are taking to alleviate the problems found in the 2008 benefits
fraud assessment, including the following:
• Employees are working at locations not identified in the petition
and/or Labor Condition Application (LCA);
• Actual job duties differing from those described in the LCA and petition;
• Failure to pay prevailing wage or required the beneficiary to pay
some or all of the American Competitiveness and Workforce Improvement
Act of 1998 fees;
• Use of fraudulent or forged documents or signatures; and
• Aliens misrepresenting they were maintaining status when returning
to the U.S. even though they previously had failed to maintain H-1B status.
Fraud in the H-1B visa program only hurts companies that play by the rules
and truly need highly skilled workers. For this reason, it’s vitally
important that your agency take all steps necessary to eliminate abuse
and take action against those who do not comply with the law.
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. I appreciate
your consideration of the issues I have raised, and await your speedy
response to this letter.
Charles E. Grassley
United States Senator