Will Companies Again Fail to Protect H1-B Fraud?

August 29, 2022

IRLI shows tough rule is needed

WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the DC Circuit Court of Appeals opposing an attempt by H1-B staffing companies to rid themselves of a Department of Homeland Security (DHS) rule that makes it harder to commit visa fraud. The DC federal district court, following a brief by IRLI, had upheld the rule, and the staffing companies are seeking a different result on appeal.

As IRLI shows the appellate court in its brief, rampant fraud would occur without the rule because the Department of Labor, by statute, lacks enforcement authority, and is required to approve applications for foreign labor as long as the forms are filled out correctly. In practice, this means that staffing companies could get applications approved for any number of workers they wished, without even identifying any specific workers, and then be able to move foreign workers around the United States at will, without any oversight by authorities.

The companies’ ability to move workers around at will would make them able to get foreign workers approved to work at universities, where H1-B visa caps do not apply, and then move them into jobs at companies where the caps do apply, thus overriding the visa caps and harming American workers.

The DHS rule the companies challenge, by requiring a new visa petition whenever a worker is transferred, prevents these abuses.

“It’s easy to see why businesses don’t like this rule; they want staffing companies to move foreign tech workers around the country to circumvent the visa caps, never mind if this harms American workers,” said Dale L. Wilcox, executive director and general counsel of IRLI. “But fraud on the American worker is against the law, and the DHS rule attacked here is clearly needed to stop it. We hope the court takes into account the information we present to it, and rules in favor of American workers and American wages.”

The case is ITServe Alliance, Inc. v. DHS, No. 22-5074 (DC Circuit).