Stories about foreign workers in the tech sector have been featured prominently in the media. These stories have usually referred to this group as H-1B workers — referring to the specific visa class authorizing their employment here.
It’s the largest temporary worker program we have in place. While no official numbers exist, published estimates of the number of H-1B visa holders currently in the U.S. number in the hundreds of thousands. Of those, over 180,000 apply yearly through U.S. embassies and consulates worldwide.
{mosads}While the vast majority of applications are valid, stories of fraudulent cases frequently appear in the press. Unscrupulous employers falsely claim work for these workers but, in actuality, “bench” them without pay upon arrival in the U.S., keeping them “in reserve” until work can be found.
While employers hold the upperhand, employees sometimes participate in the fraud for a bite at the H-1B apple. Recent audits by the Department of Homeland Security (DHS) comprising a sliver of the total numbers appear to validate these stories, demonstrating a trend of non-compliance (if not outright fraud) by supposed employers.
Consular officers, serving at our embassies and consulates overseas, are a critical backstop to help prevent this type of abuse. However, the current process places a high bar for officers wanting to stop dubious applications.
Giving greater authority to our consular officers to refuse H-1B visas could further weaken the hands of unscrupulous employers, better support our fight against labor exploitation and help level the playing field for law-abiding employers and job-seekers.
The H-1B process is complex and not for the faint-hearted. An employer seeking to hire a foreign employee must first receive a certified Labor Condition Application (LCA) from the Department of Labor, compelling them to pay comparative wages, provide safe working conditions, etc.
With the LCA approval in hand, the employer then submits an application to DHS that makes an assessment of the foreign employee’s eligibility to legally work in the U.S.
If DHS approves this petition, the foreign employee then applies at the appropriate U.S. embassy or consulate overseas for an interview with one of our consular officers. This final stage is the first and, in many cases, only substantive opportunity for a U.S. government official to interview the applicant in person.
In its current form, DHS approves or refuses the thousands of petitions filed by employers for H-1B workers that flood into their inboxes every year. While DHS reviews the applications filed by employers, they never actually interview the applicant.
This is where the State Department (DOS) comes in. State Department consular officers have the responsibility for interviewing the thousands of applicants whose applications have initially been approved by DHS stateside.
During the interview, the consular officer assesses the veracity of the applicant’s qualifications, looking out for discrepancies between the application and the applicant’s responses. Because most applicants are legitimate, this process is fairly quick for the vast majority of cases.
Refusals for security issues, such as drug or criminal activities, are also quickly dealt with. If the credibility of the applicant or an employer is in question and the officer is leaning toward refusing it, the application can be refused under Section 221(g) of the Immigration and Nationality Act for administrative processing. It is at this point that the burden of proof shifts to the consular officer.
Officers must go to great lengths to gather enough evidence to refute the applicant’s and employer’s information. For instance, if an officer suspects that the documentation initially submitted to DHS was falsified due to information gleaned at the interview, it becomes quite a tall order for our officer, sitting in India, to prove that suspicion.
After that, the officer has to draft a revocation memo; submit it to DHS; and wait for a response that hopefully results in the revocation of the initial approval. In the meantime, the applicant and the employer have limitless opportunities to keep pursuing the application at the embassy until DHS renders its decision.
While the typical interview of a legitimate applicant only takes minutes, the revocation process can take weeks, not including the wait for a response. It is important to note that requests do not automatically result in DHS revocations.
This is in marked contrast to the process for tourist and student visas, which consular officers can refuse without referring the case to another government agency.
To more effectively combat fraud and abuse in the H-1B visa process, consular officers overseas could be given the authority to refuse suspect H-1B visa applications independently.
In-person interviews by consular officers often reveal a different dimension inaccessible to our DHS counterparts, who are limited to reviewing documents vulnerable to manipulation. Consular officers can help enhance DHS’ effectiveness, freeing up DHS officials from having to review cases already deemed to be ineligible by consular officers in the field.
{mossecondads}To maintain a check on our consular officers’ decisions, refused cases should receive a supervisory review before the final decision. At most U.S. embassies and consulates, this would amount to a very small number of cases, so workload demands for supervisors would be manageable.
Finally, precious H-1B visa-allocation slots could then be freed-up and circulated back into the larger H-1B pool for use by legitimate employers and applicants.
Giving consular officers greater authority would greatly help in stopping questionable applicants and unscrupulous employers from taking up the precious few H-1B allocations and help reduce the labor exploitation perpetrated by these actors.
Martin L. Oppus, a foreign service officer with the U.S. Department of State, is a national security affairs fellow at the Hoover Institution at Stanford University. His views are his own and do not represent those of the U.S. Department of State.