Due to the time-sensitive nature of agricultural work, U.S. Citizenship and Immigration Services(USCIS) expedites all H-2A “temporary or seasonal agricultural worker” petitions. However, somerecent H-2A petitions have experienced unexpected delays due to Requests for Evidence (RFEs)resulting from the use of the Validation Instrument for Business Enterprises (VIBE). As delays inadjudication are especially burdensome for H-2A petitioners, USCIS is providing an H-2A OptionalChecklist as well as a Questions & Answers document to help petitioners ensure that their petitions areexpeditiously processed.

Additionally, USCIS will hold a public engagement in the near future toprovide USCIS and H-2A employers, associations and agents the opportunity to discuss best filingpractices. Until such time, USCIS is temporarily suspending the use of VIBE in the H-2A Program.  Useof VIBE will resume after 45 days of the date of this USCIS Update on July 18, 2011.

Validation Instrument for Business Enterprises (VIBE) Program

 

Introduction

The Web-based Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data from an independent information provider (IIP) to validate basic information about companies or organizations petitioning to employ alien workers. Currently, the independent information provider for the VIBE program is Dun and Bradstreet (D&B).

Background

When adjudicating employment-based petitions, USCIS must primarily rely on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification.  When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS must issue a Requests for Evidence (RFE) for additional documentation, delaying final adjudication of the petition. The VIBE program has been introduced to address some of these issues.

VIBE Program

VIBE allows USCIS to electronically receive commercially available information from an IIP about a petitioning company or organization, including:

  • Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
  • Financial standing, including sales volume and credit standing
  • Number of employees, including onsite and globally
  • Relationships with other entities, including foreign affiliates
  • Status, for example whether it is a single entity, branch, subsidiary or headquarters
  • Ownership and legal status, such as LLC, partnership or corporation
  • Company executives
  • Date of establishment as a business entity
  • Current physical address

A USCIS officer will review all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators will use the information provided from VIBE to verify the petitioner’s qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioners’ financial viability. USCIS will not deny a petition based upon information from VIBE without first giving a petitioner the opportunity to respond to USCIS’s concerns. USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested. The Immigration Services Officer (ISO) will make a final decision based on the totality of the circumstances.

Immigrant Classifications Included in VIBE

The following I-140 employment-based immigrant classifications are included in VIBE:

  • E12 Outstanding professor or researcher
  • E13 Multinational executive or manager
  • E21 Member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
  • E31 Skilled Worker
  • E32 Professional
  • EW3 Unskilled/Other Worker

Additionally, the following I-360 employment-based immigrant classifications are included in VIBE:

  • SD1 Minister of Religion
  • SR1 Non-minister in a religious occupation or vocation

Nonimmigrant Classifications Included in VIBE

The following I-129 employment-based nonimmigrant classifications are also included in VIBE:

  • E-1   Treaty Trader
  • E-2    Treaty Investor
  • E-3    Member of specialty occupation who is a national of the Commonwealth of Australia
  • H-1B  Specialty occupation worker
  • H-1B1 Specialty occupation worker from Chile or Singapore
  • H-1B2  Worker performing services related to a Department of Defense (DOD) cooperative
    research and development project or co-production project
  • H-1B3  Fashion model of distinguished merit and ability
  • H-2A  Temporary or seasonal agricultural worker
  • H-2B  Temporary non-agricultural worker
  • H-3     Trainee or special education exchange visitor
  • L-1A   Intra-company transferee in a managerial or executive position
  • L-1B    Intra-company transferee in a position utilizing specialized knowledge
  • LZ Blanket L petition
  • Q-1 International cultural exchange visitor
  • R-1 Religious worker
  • TN NAFTA professional from Canada or Mexico

Classifications Not Included in VIBE

At this time, the following employment-based classifications are not included in VIBE due to the very unique eligibility requirements for these classifications:

  • E11  Individuals of extraordinary ability
  • E21  National interest waiver
  • EB-5  Immigrant investor
  • O  Individuals with extraordinary ability or achievement (including essential support personnel)
  • P  Internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program (including essential support personnel)

Goals of VIBE

By enhancing USCIS’s ability to distinguish eligible petitioners more easily from those who may be ineligible, VIBE is expected to increase the efficiency of reviews by USCIS ISOs. In the future, VIBE should reduce the need for petitioners to submit identical paper documentation with each petition to establish their current level of business operations. VIBE should also assist USCIS to reduce the number of RFEs issued to otherwise eligible petitioners.

By providing the same petitioner information to all four USCIS Service Centers, VIBE promotes the consistent review of employment-based immigrant and nonimmigrant petitions. Overall, the information provided by VIBE improves the integrity of employment-based immigrant and

 

USCIS is taking measures to carefully review all pending H-2A petitions filed prior to this clarificationnotice. If you currently have an H-2A petition pending with USCIS that has been delayed due to arecent VIBE-related Request for Evidence or Notice of Intent to Deny (NOID), USCIS will expedite thereview of your petition. To initiate this process, you may clarify your company’s basic businessinformation by sending an email directly to USCIS at H2Athirdparty@dhs.gov.

Your email mustinclude:

  • “VIBE H-2A RFE/NOID: [Insert Receipt No.]” in the subject lineThe receipt number of your pending H-2A petition (Form I-129)
  • Your company’s full, legal business name (Note: If your business is a sole proprietorship, pleasestate that and provide the individual owner’s full name if a business name does not exist)
  • Any trade-style name (such as a “doing business as” (DBA) used by your companyYour company’s registered business address; and
  • Any additional mailing addresses used by your company.

Do not include any other attachments or documentation in your email.Employers with multiple H-2A cases pending are advised to submit a separate email for each petitionwith the above information to USCIS.For more information about USCIS’s VIBE Program please visit: www.uscis.gov/vibe.

 

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Shah Peerally is an attorney licensed in California practicing immigration law and debt settlement. He has featured as an expert legal analyst for many TV networks such as NDTV, Times Now and Sitarree TV. Articles about Shah Peerally and his work have appeared on newspapers such as San Jose Mercury News, Oakland Tribune, US Fiji Times, Mauritius Le Quotidien, Movers & Shakers and other prominent international newspapers. His work has been commended by Congress women Nancy Pelosi and Barbara Lee. He has a weekly radio show on KLOK 1170AM and frequently participates in legal clinics in churches, temples and mosques. His law group, Shah Peerally Law Group, has represented clients all over the United States constantly dealing with the United States Citizenship and Immigration Services (USCIS), Immigration and Custom Enforcement(ICE) and CBP (Customs Border Patrol (CBP) under the Department of Homeland Security (DHS). This department was formerly known as the Immigration and Nationality Services (INS).