Washington, D.C.—USCIS released in full the four remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center (LAC) and Steptoe & Johnson LLP on behalf of AILA. The documents plainly describe – in more detail than documents previously released in this lawsuit – “fraud indicators” that result in greater scrutiny of certain H-1B applications. These documents are troubling evidence of a near presumption of fraud in H-1B applications submitted by small and emerging businesses and for certain types of positions at these businesses. The following documents were released:
- “H-1B Primary Fraud Indicators for Referral,” dated August 28, 2008;
- “H-1B Primary Fraud Indicators for Referral,” dated September 23, 2008;
- “H-1B BFCA Q&A,” dated August 28, 2008; and
- “H & L Fraud Referral Sheet,” dated October 25, 2010.
Background of the Lawsuit
AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. USCIS’s H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and has dramatically increased the frequency of unannounced worksite fraud inspections, yet has kept the rules and guidelines related to the review process secret.
In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. In response to the district court’s grant of partial summary judgment to AILA in March 2012, USCIS released in unredacted form: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet, and 3) a Compliance Review Report. These documents provide valuable insight into the criteria that USCIS applies to assess fraud. Notably, H-1B petitioners with a gross income of less than $10 million, with 25 or fewer employees, or that were established within the last 10 years are presumed to be more susceptible to fraud. Where these factors exist, USCIS directs adjudicators to review them “with an awareness of the heightened possibility for fraud and/or technical violations” and refer them for “further scrutiny.” On November 9, 2012, instead of continuing to justify the withholding of the four remaining contested documents, the government also released those records in full.
This lawsuit is part of the LAC’s continued effort to increase transparency and promote accountability regarding DHS enforcement practices. Read more about the lawsuit on our website.
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