By Rob Sanchez
03/31/2008
Lately I have received lots of emails from people who say that the USCIS is going to finally crack down on bodyshops. As the theory goes, Indian owned bodyshops routinely file multiple H-1B applications for the same worker in order to game the H-1B lottery at the end of the fiscal year. I’m not sure why Indian bodyshops get most of the blame for this type of behavior — perhaps it’s just another one of those urban legends. The truth is that there are thousands of U.S. owned companies that hire H-1Bs and they are just as unscrupulous, and another misunderstood fact is that many Indian owned bodyshops are opposed to allowing multiple filings because they feel they lose out to the big ones like Tata or Infosys:,Apex software body Nasscom welcomed the move to streamline the H1B visa process, saying it would eliminate unnecessary malpractices by fly-by-night operators that deny opportunity to genuine applicants.[The Hindu Business Line : US bars multiple H-1B filings for same worker, March 21, 2008]
Well, folks, the theory that bodyshops routinely game the system may be true, and it may be true that lots of other shady operators are doing the same, but this rule isn’t going to stop the practice and here are three reasons why:
1) The number of multiple filings that are detected by the USCIS are very low — which implies that it either almost never happens or that it’s rarely detected. Several news articles about this rule reported that last year there were about 500 multiple filings. I didn’t believe the number was that low, so I called the USCIS and verified it for myself. The representative I talked to said that this regulation was not put into place because of scientific evidence that multiple filings were a major problem — it was done just as an administrative gesture to make sure the playing field was evened out. All of this means that despite the media buzz you see about this, the new regulation from the USCIS accomplishes nothing.
2) Bodyshops won’t get caught, even if they do file multiple applications. That’s because the automated scanners that are used to enter H-1B petitions can easily be spoofed by merely specifying trivial differences in the job title; like for instance they could say they need a "Java Programmer" and a "Java Web Programmer, and to make it even more difficult to detect they could list starting salaries that are a dollar or two different. Those may seem like two different positions to the USCIS computer but they are one and the same to the employer. Another obvious way to spoof the scanners would be to specify the same job title in two different cities where the company is located because nobody tracks where H-1Bs go after they enter the U.S.
3) Last year the USCIS cutoff for filings was for about 150,000 petitions. If this rule had been in affect last year, only 0.3% of the filings would have been rejected. Such a minuscule number of rejections won’t even be noticed since employers are standing in line to scarf up any visas that become available. Go to this web page[PDF] for more specifics on the number of petitions in 2007.
So, what is the worst thing that could happen to a company that is caught violating the regulation? They will lose the filing fee of $1,300, which is a mere slap on the wrist. A penalty that light is unlikely to deter those that wish to game the system, especially considering they would be very unlucky to get caught.
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