• The employer must hire a clearly qualified candidate. For an H1B for a programmer, for example, a candidate must possess the required degree in the field of computer science, electrical engineering, electronics, or a related field. A degree in an unrelated field could result in delays, since work experience and/or diplomas, in such an instance, would need to be evaluated as equivalent to the baccalaureate degree in the required field.

• The employer must submit evidence of a bona fide job offer. A history of failing to pay the required wage to previous H1B visa employees, for example, will result in a problem.

• During the visa interview, the candidate should remember that fabrication of evidence, such as degrees and prior work experience, could result in a lifetime fraud / misrepresentation bar on entry to the U.S. Applicants should avoid the temptation to fabricate education or prior work experience. In many cases where the candidate has the required four-year degree in the area of intended employment, work experience is not required for an H1B visa.

• Fundamental knowledge of the subject area in which the candidate will work in the U.S. is essential. If a visa applicant is not familiar with basic terms dealing with the particular occupation or profession, for example, the visa will not be issued. The Consular official is likely to return the case to the USCIS for revocation. This revocation could be based on the candidate having committed fraud regarding the education, work experience, or immediate ability to perform the job duties upon entry to the U.S.

• Ability to converse in fluent English. This requirement is considered fundamental to almost any professional position in the U.S. A candidate who is not able to speak English usually cannot perform the job, as most professional positions in the U.S. require communication in English.

Anti-Fraud Issues in Applying for Visas

Mr. Ordonez, as the Chief of the AFU, summarized the problems commonly encountered by his team that may result in delays or denials of the visa as:

• Submission of fake degrees or diplomas

• Inability to speak in English and communicate information during the visa interview

• Behavior during the visa interview that gives rise to suspicion that some information is being withheld

• Inability to exhibit an understanding of the work being offered in the U.S.
  (The visa applicant must understand the nature of the job to be performed or of the work project.)

• Submission of photographs for dependents that are of individuals other than the dependents
  (This may result in a notation of fraud in the file and a temporary or permanent bar on entry to the U.S.)

• Behavior during the visa interview that is the result of obvious coaching
  (Providing answers that are too similar to those of other applicants undermines one's credibility. We would note that it is acceptable to obtain advice on how to address issues at the consulate. One's responses, however, must be accurate and in the applicant's own words.)

End-User Client Letters for Consulting Companies
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I discussed the matter of the Consular section requiring end-user client letters. Many H1B employers and employees, as well as several AILA attorneys, have approached me as well as  the Murthy Law Firm, inquiring about this. The matter deals with the fairly recent requests for letters from supervisors of the end-user clients. These requests require the end users to outline the nature of the job to be performed by the H1B visa candidate, provide details of where the candidate will work, the length of the project, and the need for a specific H1B employee by name and other details. Unfortunately, most end-user clients are not willing to comply with such an onerous request. The very reason for the end-user client to hire an outside consulting company is to minimize the burden of administrative or HR responsibilities. Moreover, the law does not require such detailed letters for the issuance of H1B visas.
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I respectfully summarized the position of many of you, our clients or those using candidates who apply for the H1B visa at Chennai, as follows.

• End-user clients generally will not issue letters to the consulate, as they do not wish to get involved with the H1B process. The very nature of the employment relationship, when hiring through consulting companies, is to avoid or minimize the work related to hiring candidates.

• Employers who sign the H1B documents do so under penalty of perjury and must pay the required prevailing wage, irrespective of whether they have assignments for the H1B candidates. The employer may decide to send the candidate back to his/her home country if enough assignments cannot be found.

• Legacy INS (now USCIS) raised many similar issues, in the early- to mid-1990s, regarding the length and nature of the projects in the U.S., timetable of assignments, and the H1B employer’s ability to pay the required prevailing wage. Senior Legacy INS officials from headquarters in Washington DC addressed the concerns of those examiners by pointing out that the law does not permit them to investigate a U.S. employer’s ability to hire H1B employees. The USCIS is bound by memos and policy guidance of the Legacy INS. After that memo, Legacy INS stopped issuing lengthy RFEs on these matters.

• The law does not require any such letters by end-user clients for the issuance of the H1B visas to the visa applicants.

• Delays in the issuance of H1B visas cause many of the employers considerable financial loss and postpone the implementation of projects. This results in the additional loss of revenues and credibility with their clients, due to their inability to produce in a timely fashion the required specialty-worker candidates.

Consular Chief Fry explained that the goal of the U.S. Consular team is to implement the law and protect both the U.S. employers, in getting the appropriate candidates whom they intend to hire, and in guarding the prospective employees against being taken advantage of by unscrupulous employers who would violate the law, failing to pay these employees the required prevailing wage.
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Mr. Fry generously and kindly agreed to consider the arguments submitted. He noted that, if the consular team was wrong in their understanding of the law, the policy, or its implementation, they would be willing to change or modify their policies and admit their error.
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Summary
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Overall, the meeting was very productive, with an open exchange of ideas. The candor of Mr. Fry and the entire Consular team shows their receptiveness to suggestions to improve the process for the benefit of all concerned. In the ultimate analysis, we are all seeking to do that which is right; namely, to help U.S. businesses obtain the qualified workers that they need and that Congress has authorized by establishing the H1B program.
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We appreciate the time, generosity, and commitment of the entire Consular team at Chennai, India, especially considering their hectic schedules at the world’s busiest H1B visa processing center.

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