DHS Takes Right Step, But It Should NOT Have Publicized It

By David North on May 13, 2014

The Department of Homeland Security (DHS) took the right immigration enforcement action recently, but, in my view, it should have done so quietly so as not to alert the bad guys.

I was genuinely pleased at first to learn that DHS had decided to take a long-needed step in enforcing the law regarding the extensions of L-1A visas in one of the nation's many temporary nonimmigrant worker programs.

As background: L-1A visas go to executives and managers of multi-national corporations, L-1Bs to workers with specialized knowledge in such companies, and L-2s to their family members. All can work in the United States. The new rule is a narrow one, and does not seem to apply to L-1Bs or L-2s, nor to the issuance of new visas, only to visa extensions for L-1As, so it should be welcomed with modified rapture.

What's the new rule? It is that a sampling of the applications for visa extensions will involve a site visit by USCIS investigators to the place where the L-1A says he or she is working. It is hard to believe that this has not been standard operating procedure for decades given the level of abuse in the system. The central notion is that there may not, in fact, be an office where the application says there is, and thus the petition is not a valid one.

USCIS announced this to the industry through one of its teleconference meetings with "stakeholders", as reported in an immigration lawyer newsletter, one of many similar notices.

The use of on-site visits to test the validity of an application for immigration benefits is a 100 percent good idea, and it is not unique to the L-1 category. They are routinely carried out with no notice, so that anyone misusing the system has no opportunity to set the stage to make things look legitimate when they are not. That is why I object to announcing ahead of time that the agency will use this technique.

The use of site visits to the homes of couples suspected of engaging in marriage fraud is an excellent enforcement technique, as former INS and DHS official Don Crocetti explained in a CIS video.

An unscheduled visit to the residence claimed by the couple may quickly indicate that only one person lives there, or perhaps a couple that is different from the one seeking the immigration benefit. Often the proof is easy to obtain. The male is there, but for some reason there are no clothes in the closet for a female, or vice-versa.

Similarly, unannounced site visits to "churches" claiming to need R-1 workers can break cases by discovering that there is nothing churchly about the address on the application form, as in the case of an alleged "nunnery".

On the other hand, the lack of a site visit can allow serious abuses of the immigration system, as was the case with the misuse of H-1B visas by "Adam University" in Denver.

As reported earlier, that institution did not exist in reality — no campus, no students, no faculty — but the U.S. government issued H-1B visas — 24 times! — to prospective faculty members at that place, all because no DHS staff member took a few minutes to visit the address on the application, which, in fact, belonged to another institution altogether.

Two other things need to be said about the latest L-1A decision.

First, the report on the stakeholders' meeting says, perhaps incorrectly, that "USCIS is expected to select L-1 petitions at random for site inspection."

That would be totally wrong. The site inspections are designed to take care of one, highly specific, narrow fraud problem that relates only to the smallest of the L-1 operations. The threat is that a small, usually family-owned firm that claims to be a multi-national gets the L-1A visa to set up an office and then fails to do so. So only the smallest operations warrant site visits.

When one of the big Indian outsourcing firms, such as Tata, gets an L-1 visa it routinely has an office for that worker — which leads to the second point. Tata and the like abuse the immigration system in a totally different way, one that no number of site visits can solve. They can bring in foreign workers with absolutely no rules on the wages to be paid to those workers. Site visits would be a waste of staff time.

But to give credit where (a bit of) credit is due: it is good to know that there will be at least some site visits regarding some L-1A visa extension applications.