Are we a trustworthy nation? The world waits to see if the American government becomes a deadbeat on August 2, when the debt ceiling is hit. Will the country break faith with its creditors? Will it stiff Social Security recipients, the ill and disabled, fallen warriors and others whose lives or fortunes depend on Uncle Sam's unflagging reliability.
The New York Times reported recently on a set of already broken American oaths. Many would-be "Special Immigrants" in Iraq who've worked for the U.S., are stranded there, facing death threats, living in stairwells,checking for car bombs underneath their vehicles, losing hope that their oft-promised yet long-delayed U.S. visas will ever arrive -- green cards that Congress ordered to be fast-tracked -- all the time chastising themselves for their gullible belief in America's words.
A letter writer commenting on the Times story bewailed our "exceptional[ly]" roguish behavior:
What have we become? Our word means nothing now. We break our word to Iraqi friends who helped us. Do we think that those whom we’ve left dangling in the wind will remain our friends? We want to break our word on debts we’ve already accrued.
Do we think that our creditors will continue to invest in us because we are “exceptional”? . . . I despair for a country that I see becoming . . . more removed from what I once thought were our high moral standards. And a country that does not keep its word.
As these despondent Iraqis have come to realize, institutional word-breaking is endemic within the U.S. immigration ecosystem. One small example tells a tale.
Consider the H-1B visa available to nonimmigrant workers in "specialty occupations" who possess at least a university sheepskin or its equivalent in the workaday world. For those who prefer their learning via chart rather than text, click here; otherwise, read the following indented paragraphs:
This visa started life in 1952 as the H-1 for employees of "distinguished merit and ability" -- a term later interpreted to refer to degreed or degree-equivalent "professionals." In 1990, however, Congress rebranded the visa the H-1B and added an array of worker protections to be enforced by the Department of Labor (DOL), including a requirement that foreign citizens in H-1B status receive at least the going rate (the "prevailing wage") in the local area. The process was designed to be speedy. It would be "attestation-driven" with penalties applied only later if DOL were to investigate a complaint and find that an employer had violated the worker-protection duties of the law. The employer's attestation, in the form of promises that must be kept, is made under oath on a form known as a "Labor Condition Application," or LCA.
The DOL is obliged to "certify" an LCA unless it is "incomplete" or "obviously inaccurate." The employer then submits the certified LCA to an agency of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), together with a work-visa petition. USCIS then determines if the job and the worker qualify as "specialty occupations," meaning that the job requires and the individual possesses that combination of theoretical and practical knowledge typically gained in a baccalaureate program or through equivalent work experience. Thus, the DOL protects H-1B workers, while USCIS confirms visa eligibility. All was well with the world, or so we thought . . .
Because the prevailing wage is defined by geography (usually the wage considered prevalent in a particular metropolitan area), the DOL maintains listings of prevailing wages for locales around the country. If an employer learns of an unforeseen business need to dispatch an H-1B worker to a worksite not listed in the LCA, the DOL requires the employer to file a new LCA and obtain DOL's certification.
USCIS's H-1B regulations, however, do not expressly require employers to submit a new or amended visa petition when the change merely involves a job relocation. After all, there'd be no reason, in principle, why such a filing would be necessary, since the employee and the job itself would not have changed. Both would still be the very same specialty occupations that USCIS had already screened and approved.
To be sure, at one point in 1998, USCIS's predecessor, the Immigration and Naturalization Service (INS), had proposed a rule that an amended petition be filed for such job changes, but never took final action. Instead, INS twice issued policy guidance, the Hogan and Aleinikoff memos, that each confirmed there is no need to report such changes unless the change invalidated the LCA. The problem for INS and now USCIS, however, is that the DOL regulations do not prescribe any situations which invalidate an LCA. Under DOL rules, an LCA may only be withdrawn by the employer or allowed to expire.
The view that a "geographic move" by an H-1B worker is not a material change (presumably because such a move does not by itself invalidate the associated LCA) was then confirmed by a senior USCIS official, Efren Hernandez III, Director of the agency's Business and Trade Branch, in 2003 correspondence to the American Council for International Personnel.
Now comes the institutional word-breaking. Recently, USCIS has begun to rule in numerous individual cases that the employer's failure to amend the H-1B petition (something only the employer can do) and secure the agency's okay for a worker's change of job location means that the H-1B worker -- merely by following her employer's instructions to appear at a new worksite -- has violated nonimmigrant status. Failing to maintain status is no small matter. It is a violation of law that can lead to the worker's and her family's removal from the United States and banishment for at least five years. It can also cause the employer to be charged with continuing to employ the worker while knowing that the right to work has been terminated -- a felony -- unless the employer immediately fires the worker.
The bitter irony here is that by relying on the USCIS to keep its word the guileless, relocated worker (the supposed "beneficiary" of H-1B labor protections) and the trusting employer have been placed into a cauldron of hot immigration water. Also ironic is the notion that serious thought is given to "Rewarding Employers Who Play by the Rules," as the Migration Policy Institute recommends, when the agency conferring the reward has systematically failed to publish intelligible rules of play.
How could this happen? Four plausible theories come to mind:
- Failure to publish a final rule. Legacy INS and its successor, USCIS, must be greater believers in "The Secret" (visualize intention and it will manifest) than in the notice-and-comment prescripts of the Administrative Procedures Act. Just because the agencies float an idea publicly does not make it binding law.
- Ignorance of DOL regulations. When Messrs. Hogan and Aleinikoff issued policy guidance, it seems no one bothered to study the DOL regulations. Had they done so, they would have understood that LCAs can never be "invalidated." Hence, they would not have referred to the "invalidation" of the LCA, but would have at least expressly stated in policy guidance (or better yet in a final regulation) that an H-1B worker's change in work site from one metropolitan area to another requires the filing of an amended H-1B petition.
- Writing a letter does not make the letter binding law. USCIS and INS know the rules of procedure and precedent. They should not have allowed the release of informal, non-binding letters that can only serve to mislead stakeholders.
- USCIS's creeping mission. As armies of USCIS Fraud Detection and National Security ("FDNS") investigators and contractors performing "site visits" have appeared at business doorsteps nationwide, some learned that the H-1B worker whose file was to be audited had moved to another job site. To an unschooled investigator (see # 2 above), this "suspicious" conduct looks like eitherfraud or a technical violation of the H-1B rules (even if the employer proffers an LCA covering the new worksite).
None of these reasons justify indifference to the unpaid debts of promises unkept. The poet, Robert Service, whose surname is what USCIS should be all about, said: "A promise made is a debt unpaid." USCIS should heed the poet's wisdom and put "Services" rightly back into its own name by promptly paying its debts to the stranded Iraqis endangered by American loyalty and by repairing the damage it has caused to relocated H-1B workers and their employers falsely accused of violating U.S. immigration law.
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.