The ‘Gotcha’ Immigration Policy
Our country’s immigration policy has been a hot topic for many years. You’ve probably heard the stories about illegal immigrants, illegal employment, border fences and amnesty. What is rarely reported is how our country is currently treating legal immigrants – those who ‘play by the rules’ – and how this immigration policy is ultimately going to hurt our economy and our country’s image with foreign professional workers.
Our law firm has represented a small Indian-owned information technology (IT) consulting company for about 10 years. The people they hire are extremely well-qualified and well paid, and the President of the company takes great effort to comply with all laws.
One of our client’s long-term employees was placed at a large, well-known Fortune 500 company (Company X), which had been a customer of our client for many years. Our client’s employee was placed on various projects at Company X for close to 3 years.
The employee recently visited India to get married. While there, he needed to apply for an H-1B visa at the U.S. consulate in order to return to the U.S. He presented the consulate with the appropriate documents for visa issuance for himself and his new wife. The U.S. consulate officer took all the documents and told him they would be in touch.
The employee did not hear anything for a few weeks, so he called the consulate. The officer told him to resubmit everything, and emailed the employee a letter asking for these documents again. The employee sent the consulate a copy of all the documents he had already presented a few weeks earlier.
After a few more weeks of silence, the employee called the consulate. The officer informed the employee that his case was in ‘administrative proceedings,’ and that he simply had to wait until he heard from them.
Another few weeks later, a couple of officers from the U.S. Citizenship and Immigration Service (USCIS) visited Company X. They asked the Company X Human Resource (HR) department if they could speak with the project manager who had signed the ‘end-client’ letter.
The USCIS officers proceeded to tell the project manager that they should never use anyone other than U.S. workers. The officers then approached Company X’s HR department and berated them about it as well, telling them that they were what was causing problems in the United States, and that foreign workers should not be placed on projects. The USCIS officers told the HR department that the U.S. government would be watching them. The HR department told the project manager they didn’t want the attention, and asked the project manager to take our client’s employee off the project, which the project manager unfortunately did.
Close to two months had passed since the employee first applied for the H-1B visa. He called the consulate officer again. This time the consulate officer told the employee that his work on the Company X project no longer existed, and as a result they are going to deny his H-1B visa. In addition, the officer informed the employee that the consulate would request the USCIS to revoke their original approval of the H-1B visa petition that was filed by our client. The consulate sent the case back to the USCIS for revocation.
This employee has never violated his H-1B immigration status, and his employer carefully followed all relevant laws, but the employee is now stuck in India. He just got married and has a new wife. He is no longer on the Company X project. Our client lost the contract with Company X. The employee has a car, apartment, etc. in the U.S. and he can’t get back here. Our client has to re-file an H-1B application for him because the consulate requested the USCIS to revoke the original one. And even if the USCIS approves it again, the employee still has to apply for an H-1B visa stamp at the consulate in order to return to the U.S. Guess what will happen when he applies?
I write this because I received an email from another employee of another company and the same thing happened. No fraud, long-established employment, all documents in order, assigned project at a Fortune 500 company, employer in business for a long time. The consulate officer denied the H-1B visa application without justification, and sent the case back to USCIS for revocation. These, and other stories over the past year or so, indicate that this is not isolated behavior, but the carrying out of a clear policy implementation.
I believe that most reasonable people support background checks and the elimination of immigration fraud. The USCIS should conduct whatever background checks are reasonable. But government intimidation and indiscriminate denials are uncalled for. If the government wants to put legitimate IT consulting companies out of business, they should simply establish a policy and do it. If they want to discourage the hiring of foreign professional workers, they should simply stop corporate immigration altogether. No surprises.
These employees would have been fine if they had stayed in the United States. There was no immigration fraud, and neither they nor their employers had violated any immigration laws. The employees needed to travel outside the U.S., and now the government is not letting them return. This type of ‘gotcha’ immigration policy should never exist in this country. It hurts our economy and our image. And unfortunately, there is very little recourse. Perhaps the government knows this.
© Murali Bashyam, Bashyam Spiro LPP - Immigration Law Group. Reprinted by permission.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.