USCIS ISSUES CONTROVERSIAL CLARIFICATION OF REQUIREMENTS FOR AGENTS FILING AS PETITIONERS FOR O AND P VISAS

U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries “that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers.”

USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an “established agent” files the petition.

A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

The supporting documentation includes a complete itinerary of the event or events.
The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
The contract between the employers and the beneficiary is submitted.
The agent explains the terms and conditions of the employment and provides any required documentation.

In addition, USCIS pointed out, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be “in business” as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers’ “agent” does not meet this condition, the agency said. “For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers.”

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

This is how the new USCIS guidance can completely kill the nonprofit arts industry. Suppose a symphony orchestra applies for an O visa for a solo violinist and provides an itinerary for its own performances with this artist, and in the O petition the symphony orchestra states that while the beneficiary will perform for this orchestra, she will also be doing some performances on behalf of another symphony orchestra, which will pay the violinist directly. These O-1 petitions have historically been approved, but they would no longer be approvable under the new guidance.

Our colleague Angelo Paparelli predicts that this news release will shake up the world of arts and entertainment. As the “Nation of Immigrators” blog notes, “Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast. Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.”

The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf. The blog is available at http://www.nationofimmigrators.com/.

H-1B BIGOTRY

There appears to be a troubling trend these days. Attacking the H-1B visa is code for keeping the Indians out. Leading the drumbeat against the H-1B are Senators Grassley (R-IA) and Durbin (D-IL), http://www.cyrusmehta.com/News.aspx. In his latest missive to the new USCIS Director, Senator Grassley makes H-1B bigotry politically respectable, http://tinylink.com/?I38d5pyKzi. While no one is denying the existence of fraud in the H-1B program, like in other visa programs, Senator Grassley finds fraud whenever he sees fit, especially when it concerns Indian computer consulting companies.

An IT consulting company may have several clients and can demonstrate that it is legitimately in the business of computer consulting. But it may not be able to pinpoint exactly where the H-1B beneficiary may work at the time of filing the petition. This does not mean that the company intends to commit fraud, as Senator Grassley thinks. When a law firm with many clients hires an associate, it is usually unable to ascertain with laser precision accuracy the client matter this associate will work on. Yet, the law firm has made a business judgment to hire an additional associate as it knows that a client will ultimately need the lawyer’s services. If there is lag time in assigning this associate from one client matter to the next, the law firm still continues to hire the associate and pays him or her. No one would accuse the law firm of committing fraud. Such is the business model of many service related industries or professions, and it is difficult to understand why an Indian consulting company must pin point many months in advance, with extensive documentary proof from the client, where it will place its prospective H-1B employee when it has a history of assigning its workers on client projects and paying them regularly. And in the event of a lag between work assignments, the H-1B law prohibits an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period. Why should this now be considered fraud?

More recently, Steve Hamm and Moira Herbst of BusinessWeek wrote a disturbing article, America’s High-Tech Sweat Shops, http://www.businessweek.com/magazine/content/09_41/b4150034732629.htm?campaign_id=technology_related. Their article focuses on bad apples in the H-1B program, who have already been prosecuted, which means that the existing law works against the abusers. Unfortunately, the article fails to highlight a single positive aspect of the H-1B visa, and there are many. Recently, the fact that four out of the six US Nobel prize winners were foreign born is a testament to the fact that this award has something to do with a smart immigration policy, http://immigrationimpact.com/2009/10/09/nobel-prizes-winners-and-immigration-policy/.In the experience of this writer, most H-1B employers want to play by the rules, which are hyper-technical, difficult to follow and complex. They have been designed to trap the unsuspecting H-1B petitioner, especially one that relies on many H-1B workers. Yet, employers comply with obtaining prevailing wage data to support the market-based wage, post notices at various worksites and often respond in great and meticulous detail to requests for evidence or notices of intent to deny! One wonders why an employer would go through all of these hoops and hurdles if it wanted to hire a worker on the cheap. None of these employers were profiled in the article.

It would be one thing if the BusinessWeek article focused on serious H-1B abuses (and there are enough teeth in the current law to punish such employers) in order to advance the rights of aggrieved Indian H-1B workers, but it gives prominence to Programmers Guild, which has links with NumbersUSA and other white supremacist organizations. The Programmers Guild cares two hoots about any immigrant worker; rather it wants to get rid of them. If you visit the Programmers Guild website, http://www.programmersguild.org/, they caricature Indian companies and the lawyers that represent them. It is difficult to understand how Programmer Guild, and its lawyer head John Miano, who are given so much play in the article, can effectively represent the interests of even US programmers when all I see on their website is whining about immigrants. They have no seminars on cutting edge technology, entrepreneurship, job placement information, networking opportunities, nothing, except for anti-immigrant invective. It is not surprising that the BusinessWeek article is spewing the worst kind of racist invective against Indians. It appears to have hurt the sentiments of lots of hardworking Indian H-1B workers across the board as can be seen on one of the discussion boards of Immigration Voice, http://tinylink.com/?LunbQu2SHb. These same Indian H-1B workers from India are also hopelessly stuck in the Employment-based Second and Third Preference backlogs, which also work against India because of the per country limits in each of these categories.

The more one reads between the lines of the BusinessWeek article, it smacks of racist undertones such as the Brazilian disliking the curries of his Indian roommates, and the reporter having cheeseburgers with John Miano at a mid-century diner in “tony” Summit, NJ (which is code for those halcyon days prior to the 1965 Act after which Indians came to open their curry restaurants and H-1B sweat shops). Rather than profiling people who advocate for more restrictions on the H-1B program, especially its use by Indian companies, BusinessWeek could have also quoted people who could have spoken positively about the H-1B program and the value that these so called “body shops” have brought to American businesses, which have betrayed no hesitation in taking advantage of them. Also, the article does not clearly articulate that if a “body shop” plays by the rules, employs the H-1B worker and pays the required wage (higher of the prevailing or actual), posts the LCA, and charges a mark-up to the client, whether this can be characterized as fraud. Is there not a freedom for Indian companies, even Indian-owned companies, to contract and make a profit? Attacking the H-1B visa program is a convenient way to attack Indians and for xenophobes to disguise their fear or hatred of immigrants under the cloak of rational argument.