Investigation Memo on Employers Results in 221(g) Visa Refusals

Visa denials for H1B workers in the IT consulting industry continue to be commonplace. Many applicants arrive for their visa appointments at U.S. consulates fully prepared, with documents in support of their H1B visa applications, yet they still face administrative processing delays and refusals. For some, the source of the problem seems unclear, as all of their documents appear to be in order. The problem often lies with the petitioning company, and, as explained below, with internal memoranda investigating H1B petitioning employers, produced by the Kentucky Consular Center (KCC) Fraud Prevention Unit (FPU). Summarized for the benefit of our readers are sources of the problems and how employers can avoid them, increasing the chances that their H1B employees will obtain their H1B visas.

Consular Officers Request Petition Revocation by USCIS

When an individual applies for an H1B visa at a U.S. consulate, the consulate has authority to refuse to issue the visa, but does not have the authority to revoke the approved H1B petition. When the consulate encounters a situation in which it is believed that negative information has been uncovered that was not available to the U.S. Citizenship and Immigration Services (USCIS) at the time the H1B petition was adjudicated, the consulate can deny the H1B visa and send the approved H1B petition back to the USCIS with a request that the H1B petition be revoked.

Once an H1B petition is returned by the U.S. consulate, the USCIS is responsible for reviewing the case, along with the input from the consulate. The USCIS will either reaffirm its approval or, more commonly, issue a notice of intent to revoke (NOIR).

Consular Officer’s Memoranda Reveal Employer Investigations by KCC

We at the Murthy Law Firm have been approached to provide input and assistance in connection with NOIRs on H1B petitions issued after consular visa refusals. These NOIRs contain as attachments memoranda from the consulates setting forth their reasons for requesting the H1B petition revocations. The contents of these memoranda can be quite enlightening, revealing in report form a compilation of company data available to the consulates. These reports, apparently available through the Petition Information Management Service (PIMS), are prepared by the KCC FPU. Our general suggestions for employers of H1B workers follow. These are based on the KCC reports that we have seen.

Employer’s Consistency in Information is Important

The reports contain analyses of information provided by the petitioning company regarding payments to H1B employees. The consulates often request that employers provide a list of their H1B employees and proof of wage payments to those employees for a specific period. Discrepancies in this information, as compared to prior submissions and statements in H1B petitions, are treated as highly suspect. Employers must make sure that their records are in good order, so that they will easily be able to provide such lists. Records should be updated as employees join the company or as they leave, either by choice or termination.

Compliance of Financial Information is Vital

Proper payment of wages is fundamental to H1B compliance. Even if the visa applicant has been properly paid at all times while working for the petitioner, failures with other employees can be devastating in the visa application process. If the wage information is inconsistent or reveals nonpayment of wages (particularly in an identifiable pattern), this will support a finding by the consulate that the employer is not able to offer a qualifying position in accordance with existing regulations. If the company’s records do not clearly reflect compliance with H1B wage obligations to its H1B employees, the visa will not be granted and the H1B petition is likely to be revoked by the USCIS.

In addition to the requests for financial documentation made to the visa applicant, the consulate may have other sources of evidence regarding employer compliance with wage payment requirements. The consulate, through KCC FPU reports, may have information regarding any U.S. Department of Labor (DOL) findings of nonpayment of wages following a DOL investigation of the employer.

Internet Searches May Reveal Patterns of H1B or Other Violations

The KCC memoranda may also include information available though basic internet searches. Companies should be aware of their public image, both official and unofficial. It may be prudent to do a basic online research about one’s employer, to gain insight into the information that might be considered by the consulate. It is common knowledge that there are websites devoted to providing information about IT consulting companies. While some of this is intended as purely informational, comments can be quite derogatory. These are anonymous, unscreened, unverified postings, but the government is reviewing them for allegations of employer practices that violate H1B requirements.

While employers cannot control the online outbursts of disgruntled employees, they can review their compliance practices. Unhappy employees may still say what they wish publically. But, if the employer is paying the required H1B prevailing wages, paying required H1B-related fees, and otherwise being fair to current and former employees, then the focus of former employees may be on general employment matters, not H1B issues. That is, they may complain about the personalities of their supervisors, their workloads, benefits packages, or whatever else they dislike, but it would be unlikely for multiple employees to complain in detail about H1B-related violations if they do not exist. Employers need to be aware of the damage that can be caused by former employees if they choose to air their complaints. They should balance this with other business considerations when developing company policies and practices.

Review of Employers and Clients’ Websites

Websites, both of the H1B petitioners and their clients, are obviously public. Companies should not plagiarize their website content from others. They may also want to avoid duplicating the content of other companies, unless there is a clear public connection to that company. Having duplication in website content looks, at the very least, unprofessional, and, at worst, brings the legitimacy of a company into question. In some cases, the consulates and KCC look, not only at the petitioning company’s website, but also at the website of the end client. If the end client’s public face appears unprofessional, or contains plagiarized content, this will draw the validity of the H1B petition into question.

False Documents or Inconsistencies Result in Visa Denials

It goes without saying that no company or individual should submit false documents in connection with any immigration petition or application. The KCC FPU apparently has the resources to verify suspect H1B-supporting documentation, including client contracts. They may contact the claimed end client to verify the content of the H1B petition. If falsehoods are discovered, these findings will be included in the information available to the consulate years after the fact.

Address Issues with Internal Audits to Avoid Visa Delays or Denials

In addition to the suggestions provided above, companies can take further steps to protect themselves from being flagged as H1B violators within the PIMS system and KCC reports. As mentioned in prior MurthyBulletin articles, available on MurthyDotCom, employers should proactively arrange for internal audits of their H1B and other immigration-related practices. This allows for problems to be identified and, when possible, rectified or at least avoided in the future. Employers need to properly document employment terminations, and request H1B petition revocations for former employees promptly. This reduces one of the common sources of LCA violations and eliminates the need to account for wage payment obligations to the terminated H1B workers.

Companies may also wish to consider responding to any such NOIRs received. If the allegations made in the NOIR, and the consular report that generated the NOIR, are not valid, the company may benefit by trying to redeem its reputation by addressing the allegations. It may be worth the effort to facilitate future visa issuance, even if the particular employee is no longer with the employer, as is common when there are visa denials.

Conclusion

This useful information is provided to MurthyDotCom and MurthyBulletin readers based on our firm’s review of the information transmitted to USCIS by the consulates in conjunction with requests for revocations. The release of consular memoranda and the related insight into KCC FPU investigatory reports explains a great deal about some of the problems encountered within the visa process. From the content of some of the reports we have seen, it is clear that certain employers or companies have effectively been “blacklisted” from visa issuance at the consulates. Those who travel and try to obtain H1B visas through these employers are likely not to be successful in securing their visas. Thus, we reiterate that individuals must avoid travel abroad if it will be necessary to apply for an H1B visa based upon employment with an IT consulting firm, particularly if there is any concern at all that the KCC could be in possession of derogatory information or accusations about the employer.

Companies are urged to protect their reputations by diligent compliance with H1B requirements, sound company policies, and presenting a proper public image. We at the Murthy Law Firm are available to provide guidance to individuals and employers with concerns related to the H1B visa application and H1B compliance.

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