USCIS Takes Small Steps Forward on Alien Worker Programs

By David North, November 27, 2010

These blogs are often critical of U.S. Citizenship and Immigration Services (USCIS), but in this case we want to note some useful (if almost invisible) steps forward.

It involves the foreign worker programs, particularly the H-1B program that currently creates a glut of scientists and engineers in the U.S. labor market and thus deprives citizens and legal residents of high-tech jobs, and results in lowers salaries for all concerned.

While this may sound almost trivial to those outside government, the progress is in the re-design of a government form, the I-129.

Why do I see the redesign as progress? It's just a change in a form.

Because an article in Immigration Daily on November 22 by an immigration lawyer complained that "the new form will be much more intrusive and probing than the current one."

If the immigration bar objects to a USCIS action, the chances are that the agency is trying to do the right thing.

The I-129 is the 35-page form that employers (or their attorneys) must complete before they can import a foreign worker. No one has to fill in all 35 pages, however, because there are special sections for each of the multitudinous foreign worker programs.

Once the application with this form has been approved, it allows the H-1B employer, for instance, to start a six-year period in which the firm usually gets a high-tech worker at bargain wages. The form, thus, provides a gateway to large economic benefits for the employers filing it.

The form also serves employers in a veritable alphabet soup of other alien worker programs, including E-1, E-2, H-1-B1, H-1C, H-2A, H-2B, H-3, L-1A, L-1B, L-2, O, P, Q-1, R-1, and TN. Each of these programs was designed to meet the wants (and perhaps the needs) of a specific group of employers, with each group being powerful enough to get Congress to add another section to the Immigration and Nationality Act. (Each of the initials relates to a section of the INA).

What does the new form do that irritates the immigration bar? It secures information for the government not previously available, information that the government may or may not use, but without which the regulators could not take additional steps to enforce the law.

Further, when a government form is changed it acquires some momentum, and is unlikely to be changed for years. It is a labor-intensive process to change a form; the agency needs the approval of the Office of Management and Budget, needs to announce what it is doing, seek comments thereon, review the comments, and then publish and print the new document. So a change today, is likely to last for a long time.

One specific that the immigration lawyers have noted, unhappily, is a question about whether the requested worker will work "off-site." This is, presumably, aimed at the so-called "body shop" employers, who rent out the H-1Bs to other employers rather than employing them in the facility of the nominal employer. As noted in earlier blogs, the use of the program by this kind of employer has been subject to an increasing amount of USCIS scrutiny.

The new form also makes sure that employers know that by signing the form they acknowledge that the USCIS can conduct "on-site compliance reviews."

Further, it asks the questions needed to sort out whether or not the employer must pay the additional fee of $2,000 on H-1B petitions, and $2,500 on L petitions "if the petitioner employs 50 or more workers and more than 50 percent of them are H-1B or L nonimmigrants." This is a new provision of the law designed to discourage the overuse of the program by certain employers.

For a longer list of the changes made in the form, see this summary.

The question of agency motivation for these mild form changes is an interesting one, and one not covered in the USCIS documentation.

Is it genuinely trying to limit damage to American workers implicit in the alien worker programs by these form changes? Or is the agency, as many suspect, trying to clean up minor abuses in order to preserve the underlying programs?