The Government Gets It Right (Sometimes) with EB-5 and H-1B

By David North on December 7, 2015

While my colleagues and I are often critical of how the government handles immigration matters, sometimes it does things correctly (and quietly) — and we should report that when it happens.

I have in mind what appears to be an EB-5 decision in Upstate New York, and two H-1B decisions elsewhere in the country.

EB-5. A couple of years ago I wrote about a truly odd, massive, and badly designed attempt to use EB-5 money to fund a large urban project in a lovely bit of countryside in New York's Hudson Valley. It would have, among other things, impinged on New York City's ecologically fragile water-collection system, and introduced what appeared to be a mono-cultural entity to be called China City.

The promoters proposed to create a regional center to handle the project, and needed DHS approval before they could start raising money. The petition, with a truly fanciful budget, lingered on someone's desk in Washington for years, but apparently was quietly killed some time earlier this year. I base that on the fact that the website no longer talks about either China City or EB-5 funding. Score one for the government.

An H-1B Case. An imaginative restaurant owner said that he wanted to hire an alien "IT specialist" to handle his software for him. He decided to apply to the H-1B system (which deals with aliens with professional credentials), but was rejected. He then appealed to the Administrative Appeals Office, which confirmed the rejection of the petition.

The case involved a smallish operation (some 16 workers) and the alien worker was to be paid about a dollar an hour over the minimum wage. My reaction was that no restaurant needs a full-time IT specialist, and no such worker should be paid such a ridiculous wage, but the AAO found other reasons for denying the petition, notably that the job was not a "specialty occupation" and that the worker did not qualify for it.

The AAO has odd ideas about privacy, so I cannot tell you the name of the employer, or the worker, or, for that matter, the decision-maker.

But both agency staff and AAO did the right thing in this case.

Another H-1B Case. This was a larger scale case, and since it was in the criminal courts (U.S. District Court in Dallas) we know more about it.

Brothers Nanda, Atul, and Jiten were found guilty of visa fraud. They ran a small outsourcing company — renting H-1Bs to other firms — but failed to meet their obligations as H-1B employers. They, according to a Computerworld article, did not provide full-time employment as they had promised when they obtained the visas, and only paid the workers when the other firms paid the brothers. The brothers opted to go to trial and lost. They have not yet been sentenced.

Again, the government did what it is supposed to do.