Grassley Concerned about H-1B "Hacking" to Circumvent Laws while USCIS Enables the Practice

Statement

Senate Judiciary Committee Chairman Chuck Grassley is voicing concerns that new, brazen attempts to circumvent the H-1B laws seem to have the unofficial blessing of the Obama administration.

According to recent press reports, there is a growing movement by some U.S. employers and institutions to "hack" the H-1B visa program in order to open up the program to more foreign workers. The term "hack," which these employers and others use to describe their efforts, is borrowed from the IT world, where it means to circumvent a computer's or network's security, usually for criminal purposes. The term, as now applied in the H-1B context, describes opening up the H-1B visa program to more foreign workers by using novel, and seemingly unlawful, interpretations of the H-1B statute. The principal goal at present of these "hacking" efforts is to secure H-1B visas for self-employed foreign nationals, despite the requirement that a foreign worker must be coming to the United States to work for a U.S. employer.

In a letter to Leon Rodriguez, the Director of U.S. Citizenship and Immigration Services (USCIS), Grassley wrote, "USCIS has turned out to be one of the biggest facilitators of these twisted interpretations of the law and, though these ventures have been publicly discussed for months, refuses to openly admonish such efforts to undermine U.S. worker protections. The law requires that an H-1B worker be coming to the U.S. to work for an employer; self-petitioning to work for one's own company is not allowed. Nevertheless, in guidance to the public, your agency actually offers foreign nationals a roadmap for how to evade the H-1B self-employment prohibition."

Grassley's letter comes as the agency finalizes regulations that would greatly liberalize the interpretation of which employers are covered by the H-1B cap exemption for non-profit entities affiliated with a college or university, a development that would substantially facilitate the sorts of arrangements of questionable legality contemplated by some educational institutions, and more generally increase the number of H-1B workers entering the country outside the 85,000 cap. This is a clear slap in the face of U.S. workers.

Grassley outlined several ways that the H-1B laws are being abused through this "hacking" scheme. One way is by setting up entities that "employ" foreign nationals in some nominal fashion in H-1B status, thereby giving the worker lawful immigration status that the person can use as cover for the true purpose of his presence in the United States: establishing and working for his own business. Other instances of H-1B "hacking" designed to let self-employed business owners work in H-1B status include collusion with state universities, and others involve even city and state governments.

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