USCIS Shoots Self in Foot Trying to Streamline an Application Process

By David North on April 7, 2011
As noted here in the past

, USCIS desperately wants to "streamline" its application processes.

Even if eligibility rules are not changed a bit, modifying an application process to make it faster, or less expensive, or more convenient to the applicant, inevitably makes that process more attractive, and thus it is used more often, and that creates more migration.

A clumsy process, however, tends to discourage marginal applicants.

In hopes of making it easier for small companies to apply for the H-1B program, among others, USCIS has introduced a new system for obtaining more business information on applicants; it is called VIBE for Validation Instrument for Business Enterprises.

Enter Malcolm Goeschl, an immigration lawyer unknown to me, and a talented story teller; his article in an edition of Immigration Daily this week describes the unintended consequences of the latest USCIS effort to make life easier for its applicants. The full text follows:

The New $299 Supplemental H-1B Filing Fee for Small Companies (aka "VIBE")
by Malcolm Goeschl

In May of last year, the USCIS' Office of Public Engagement hosted an "Information Sharing Session" on the new Validation Instrument for Business Enterprises pilot program (or "VIBE"). VIBE is of course a new method for USCIS officers to verify petitioner information in adjudicating employment-based petitions. In essence, the program gives immigration officers access to information about the petitioning company from Dunn & Bradstreet ("D&B"), which is a private company which specializes in providing credit reporting and other information about companies. Concerned that inaccurate D&B information may provide yet another excuse for the USCIS to issue onerous requests for evidences (RFEs) to small companies, I thought I should be at the meeting to express my apprehensions.

The meeting was well attended. In addition to Donald Neufeld, AILA representatives, immigration attorneys, and several other stakeholders, three D&B representatives came to explain how their system works. After a PowerPoint presentation by D&B with a lot of colorful diagrams and graphs, the floor was opened for questions and comments. Many of the immigration attorneys in the room expressed concern that VIBE would lead to RFEs asking for much more information than what would be needed to verify the basic company information found in the D&B profile. We were assured by the USCIS brass that this would not happen. When I also mentioned that D&B information for smaller companies was frequently inaccurate, one of the D&B representatives responded that this was not true, and that the information was generally always correct. Unsatisfied with this response, and unhappy at being rebuked, I thought for a way to prove my point. The following idea came to me: I emailed one of the paralegals in my office and asked her to buy a D&B report on my law firm and email it back to me. Within about five minutes, and after paying about $100 by credit card, I had a complete D&B profile on Goeschl Law Corporation on my mobile phone in front of me. I eagerly raised my hand and mentioned that I just checked D&B and our company name, address, and employee headcount were all about three years out of date.

At that point, I felt a little guilty for being a smart-aleck. The D&B representative who had told me I was wrong, now looked down at his sheet of papers, and the other D&B representatives looked at him, and there was a few seconds of silence. Like many of the startup companies that we represent, we had never had a reason to update our D&B information. Small law firms, like startups, generally do not borrow money from banks, or apply for credit lines. D&B had never called us, before that meeting anyway, and asked for information to verify the information in our company profile. Whatever information was in D&B was provided by third parties, or harvested from public records.

Nearly a year following the VIBE meeting, some of the worst fears expressed by immigration attorneys about the program have been realized: inaccurate D&B information has led to unnecessary and time consuming RFEs for smaller companies. Although VIBE is still only in beta-testing, "VIBE RFEs" have been widely reported. We have found that even where a small company submits a copy of a commercial lease to verify its office address location, VIBE RFEs are being issued where the address does not match D&B records. In addition to asking for information to verify corporate addresses, headcount or finances, these RFEs often throw in other gratuitous requests such as documentation to show "sufficient warehouse space to store software inventory," for example. Rather than making the adjudication process more efficient as was intended, VIBE has increased small companies' burden in the H-1B process.

Like other immigration attorneys, we are now counseling small company petitioners to update their D&B information before filing petitions with the USCIS. During the meeting last May, the D&B staff said that companies could update their information for free. The company could simply contact D&B, and within 4 days the information would be verified and updated. Unfortunately, the solution is not that simple. In order to update a company's information, the company must first obtain a D-U-N-S number. Without paying D&B a $299 fee for this number, it takes 30 days. Most small companies filing a petition for the first time will not already have a D-U-N-S number, and will not be able to wait 30 days. So they will pay the fee, which will still likely be less than the cost in time and money of responding to a nasty RFE.

The end result is that a small company filing immigration petitions for the first time will have to pay $299 in addition to the USCIS fees, and attorney fees. I suspect that the D&B executive who negotiated that deal with the government likely got promoted.

In a footnote Goeschl points out: "The USCIS seem to be unaware that most software companies do not package software in cardboard boxes anymore".