STATEMENT OF CONSULAR OFFICER

DIRECTORATE FOR VISA SERVICES

DEPARTMENT OF STATE

JILL M. ESPOSITO

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

OF THE COMMITTEE ON THE JUDICIARY

UNITED STATES HOUSE OF REPRESENTATIVES

MAY 5, 1999

My name is Jill Esposito and I am a Consular officer in the US Foreign Service. I am currently assigned to the Directorate of Visa Services where my responsibilities include oversight of developments in the H and L nonimmigrant visa categories.

There is no doubt that many foreign workers currently in the United States in H1-B and L-1 nonimmigrant employment visa status are indeed skilled professional workers and experienced managers of multinational companies with operations in the United States, as envisioned by the law. Nonetheless, along with these desired professionals, thousands of marginally qualified applicants are also entering the United States in the H1-B and L-1 categories.

To demonstrate this point, I would like to share with you a sample of some of the cases that we have seen in the field.

Consular officers at the Consulate General in Guangzhou, China, recently chose ten random L-1 petitions from those that had been approved by the INS and forwarded for visa issuance. The officers then set out to verify the accuracy of the information contained in the petitions. Of these ten petitions, only two were bona fide companies whose petition beneficiaries were actual managers. Of the other eight approved petitions, three companies could not be located at all and did not appear to exist except on paper. One beneficiary was totally unknown to the claimed "parent company" that supposedly wanted to transfer her to the US. The other companies investigated were extremely small and unable to establish that their interests were international in scope.

There are many examples where the listed addresses of "parent companies" seeking to establish an operation in the US turn out to be beauty salons, private residences, or small groceries. Indeed, a common abuse of the L-1 "intracompany transferee" visa involves a small shop owner traveling to the US on a visitor visa, setting up an "international branch" of the family grocery stand or fabric store, and then petitioning himself for an L-1. Once the petition has been approved, the remaining family travels to the United States. No real relationship between the store in their country of origin and their new enterprise in the United States is maintained. Just such a case was recently brought to our attention by the Consulate General in Jerusalem.

Sometimes consular officers can prove that the case is a total fabrication. But often the case is like the one described above where it meets certain technical standards, but certainly does not meet the purpose intended by Congress in establishing the intracompany transferee visa category. As these petitions have already been approved by the INS, the only recourse available to a consular officer is to return a petition to the INS Service Center that approved it --pointing out the irregularities. However, INS as the adjudicating authority may reaffirm the petition and return it to post for visa issuance.

Another example recently reported by the Consulate General in Casablanca illustrates a different problem for H-1B cases. The company that had filed a petition turned out to be the donut shop owned by the applicant's sister and brother-in-law in the United States. The donut shop supposedly needed her skills as a "comptroller" to "direct the financial activities of the company." This applicant was 23 years old and a recent university graduate. The petitioner firm is a bona fide entity -- the donut shop really does exist -- and the applicant does indeed have a bachelor's degree as required under the law. Still, the interviewing consular officer wondered how this was an alien with highly specialized knowledge going to a specialty occupation.

Let me explain how this can happen. All employment visa petitions are adjudicated by the INS based upon the documents submitted. The applications are often filed by professionals who take care to "package" their clients in a way that will fit the requirements of the category. The INS officer will be buried in certifications and attestations as to how the beneficiary's degree and accounting experience in a "prestigious" foreign firm entitles her to be qualified as a specialty occupation employee. The donut shop will never be referred to as just that -- but always as the "corporate body" or "petitioning firm." INS will approve the petition based on the documentation included and send it to the consular officer abroad for visa issuance.

If a picture is worth a thousand words, I wonder how much an interview is worth? Only when the applicant shows up at the visa interview does the real picture become clear. The consular officer learns that the "comptroller" does not speak English, and that her employment experience had actually been an internship. The consular officer also recognizes that the prospective specialty occupation employee's professional background is not relevant to US accounting standards. Very often in cases like this the petition technically meets the requirements of the law - the company exists and the employee meets the minimum qualifications. In such cases, we are concerned that existing law leaves a large gray area where it is difficult to refuse issuance of a visa when there is not clear evidence of outright fraud. State consular officers may raise concerns regarding marginally and minimally qualified cases to the INS. However, INS as the adjudicating authority may reaffirm the petition and return it to post for visa issuance.

Nor is the problem of paper review limited to the H and L nonimmigrant categories. The P-3 category, designed to bring artists and entertainers to the United States for performances, is also subject to abuse. Embassy New Delhi recently reported that an intensive scrutiny of the bona fides of P-3 petitions forwarded to their post revealed that 40% of the petitions contained information that was not credible. Since beginning their review of promoter credentials, P-3 petitions in New Delhi have plummeted 86% from the same period last year, from 2016 to 278.

INS and State share frustration over such abuse in these employment visa categories. In a recent initiative aimed at preventing H-1B fraud, INS and State have shown that cooperation in fraud investigations can be beneficial. The US Consulate in Chennai (Madras), India has offered to perform investigations for the INS on suspect H-1B cases PRIOR to their adjudication of the petition. Chennai issued over 20,000 H-1B visas in FY 98 -- more than any other overseas post. Indeed, as Indian nationals account for over 40% of all H-1B's issued -- establishing this pilot in Chennai has been extremely appropriate.

The three participating INS Service Centers forward to Chennai requests to investigate the authenticity of suspect job experience letters, companies and degree certificates. After almost one year of this initiative, the results are impressive. INS sent 3,247 cases to Chennai. The anti-fraud unit was unable to verify the authenticity of close to 45% of the claims made on the petitions. 21% of the work experience claims made to the INS were confirmed to be fraudulent.

Checks such as these prior to petition approval by the INS help prevent fraud such as "front companies" set up for immigration purposes only, and the fabrication of an applicant's education or experience. Unfortunately, we simply do not have the staff to conduct routine investigations for the INS. Also, investigations will not prevent abuse from "creative packaging" as described above. As long as the legislation governing these visa categories remains so vague and open-ended as to encourage this type of abuse, I believe we will continue to receive petitions for applicants who do not have the highly desirable skills or managerial experience that Congress intended to bring into this country.

Thank you.