Companies need to keep a strong compliance profile for H-1B visas: Austin T Fragomen

Indian IT companies are facing unprecedented US visa woes. The US Citizenship and Immigration Services (USCIS) has been increasingly denying or issuing requests for evidence (RFEs) for H-1B, the lottery-based work visas, and for L-1, the visas used by companies outside US to transfer senior managers to the US. It is thus no surprise that Austin T Fragomen, Jr, chairman and founder of New York-based immigration law firm Fragomen, Del Rey, Bernsen & Loewy, LLP, is spending more time with his Indian clients these days. His firm, with 40 overseas offices, is recognised as the world’s largest to focus only on immigration law.

Fragomen, 75, who started his long career in immigration law in 1951, has served as staff counsel to the House of Representatives subcommittee on immigration, citizenship and international law. He has also testified before House and Senate subcommittees to share his expertise on various immigration topics, including H-1B and L visas. Fragomen, who was in Bengaluru to address talent and mobility heads of various tech companies, spoke to ET about the challenges faced by Indian companies and professionals due to the Donald Trump Administration’s “Buy American and Hire American” policy. Edited excerpts:

The rising number of denials of work permit visas and more RFEs under the ‘Buy American and Hire American’ policy has had an adverse impact on Indian IT companies. How difficult has the situation been for the last few quarters?

We first noticed growing pressure on Indian IT companies four-five years ago. But it hadn’t reached the level that it was actually impacting business. Back then, if you had a certain number of denials, a typical remedy was to file more applications and it was fairly easy to manage. But ever since the Trump Administration established the ‘Buy American, Hire American’ policy, the impact has been greater. While visa denial rates are higher for everyone, they have particularly hurt Indian companies that do offsite placements under the general category of H-1B. There is also a proposed legislation around the 50:50 rule, which can further limit the number of skilled workers from India.

What type of Indian company has been affected the most?
Larger, established companies, which include Indian companies and Indian subsidiaries of US companies, have higher approval rates than smaller companies. Things have become tough for smaller companies, which place workers on client sites. They are facing more vigorous enforcement action. While it doesn’t cost anything to receive denials, RFEs, which have become common, require a lot of case work and can require companies to pay double the fees to lawyers. RFEs have become prevalent in all industries, including IT, consulting and financial services.

In this scenario, what should Indian companies be most concerned about?
The US government is now far more aggressive and sophisticated in the area of investigation and compliance. Government agencies are interacting more with each other than in the past and companies need to see this as a significant risk area and maintain a strong compliance profile when getting their people to the US.

In terms of logistics, companies that file thousands of H-1B visa applications face a higher risk from enforcement standpoint, especially when they have not made investments in comprehensive risk management systems. Often, there are huge teams managing the movement of people and [it] may become difficult for the top management to control. Things like submitting a false invitation letter from a client or a false statement with an application can happen at lower levels and become huge risks for the companies, if investigated. The process needs to be managed more carefully.

The US Immigration and Customs Enforcement had set up a fake university to expose immigration fraud, leading to the arrest of many Indian students. Do you think students from other countries are also facing the heat?
The government is focusing on students because they are such an important part of the flow into professional immigration to the US. In fact, the overall view is that overseas students, especially those in the STEM fields [science, technology, engineering and mathematics], should have a favourable position in the skilled immigration process and that is why the US administration seems to be sending the aggressive message that they will come after this segment too on compliance.

What about Indian professionals in green card queues?
The long wait for permanent residence or green cards by professionals on work permit visas have a negative impact on the lives of many Indian families in the US. For companies, too, it is difficult to move people around or even promote them to senior roles since that would mean restarting their green card petitions all over again. Most top IT companies in the US are making green card reforms their top agenda when lobbying with the government. Most of them support elimination of country-based caps, which result in inequity in wait time for some of their employees, such as those from India.

Recently, a US IT firm sued the government over H-1B denial. Are Indian IT firms too likely to seek legal recourse?
IT companies usually hang back when it comes to getting into a policy conversation with the US government. That happens more at government-to-government discussions. However, if a company is impacted enough, it should go to court in the US, which is the only proven recourse to visa issues. It is not easy to interact with the US administration while the Congress is not likely to implement any legislative change on immigration at this point. However, businesses across the board are reluctant to sue since it is expensive and may take a lot of time. Besides they fear retaliation, especially if they have government contracts.

Will USCIS’ asking for social media information of visa applicants impact Indians?
Our experience in handling visa applications is that extreme vetting measures are infrequent and quite unusual. So social media is rarely checked. It is more commonly encountered in Arab countries but not extensively even there.