Department of Homeland Security 

Office of Inspector General 

Processing of Nonimmigrant Worker 


Petitions in Support of U.S. Marine Guam 


Realignment Construction Activities
 

OIG-11-14 November 2010 
Office ofInspector General

U.S. Department of Homeland Security

Washington, DC 20528

Homeland

Security NOV 17 2010

MEMORANDUM FOR: The Honorable Alejandro Mayorkas

Director,

U.-.§. Citizenship and Immigration Services

...c~L.~ FROM: Richard L. Skinner

Inspector General

SUBJECT: Final Letter Report: Processing ofNonimmigrant Worker

Petitions in Support ofu.s. Marine Guam Realignment

Construction Activities

Attached for your information is our final letter report, Processing ofNonimmigrant

Worker Petitions in Support ofu.s. Marine Guam Realignment Construction Activities.

This report incorporates the formal comments from the Acting Deputy Director, U.S.

Citizenship and Immigration Services.

Consistent with our responsibility under the Inspector General Act, we are providing

copies of our report to appropriate congressional committees with oversight and

appropriation responsibilities over the Department of Homeland Security. We will post

the report on our website for public dissemination.

Should you have any questions, please call me, or your staff may contact Anne L.

Richards, Assistant Inspector General for Audits, at (202) 254-4100.

Attachment
 

 

Background 

In the October 2005 agreement “U.S.-Japan Alliance: Transformation and Realignment 

for the Future,” the U.S. Government and Government of Japan agreed to realign U.S. 

and Japanese forces throughout the Pacific. As part of this realignment effort, the two 

governments agreed to relocate approximately 8,000 U.S. Marines and 9,000 dependents 

from Okinawa to Guam by 2014. The transfer is expected to cost an estimated $13 

billion and require a substantive upgrade to Guam’s infrastructure. The U.S. Government 

expects that these infrastructure upgrades will be conducted by contractors employing an 

estimated 23,000 foreign-born construction workers cumulatively through 2014. 

The objective of our audit was to determine whether the U.S. Department of Homeland 

Security, through its U.S. Citizenship and Immigration Services (USCIS), has the 

capability to process and adjudicate an adequate number of H-1B and H-2B temporary 

nonimmigrant worker visa petitions to support construction requirements associated with 

the Guam Realignment Project.1

 The report does not assess the capabilities of the 

Department of Labor to process and approve foreign labor certifications or the 

Department of State to process and issue temporary nonimmigrant worker visas. 

The H visa is a nonimmigrant temporary worker classification. The H visa is job and site 

specific and, once approved, the employee is eligible to work at the job for which that 

visa was approved. The H visa status may be obtained for up to 6 years for the H-1B 

visa2 and up to 3 years for the H-2B visa. 

The H-1B is a nonimmigrant visa in the United States under the Immigration and 

Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ 

foreign workers in “specialty” occupations. The regulations define a “specialty 

occupation” as requiring theoretical and practical application of a body of highly 

specialized knowledge in a field of human endeavor.3 H-1B workers must possess at 

least a bachelor’s degree or its equivalent and state licensure, if required to practice in 

that field. H-1B work authorization is also strictly limited to employment by the 

sponsoring employer. The number of H-1B visas issued annually is capped at 65,000. 

The H-2B nonagricultural temporary worker program allows U.S. employers to bring 

foreign nationals to the United States to fill temporary nonagricultural jobs. H-2B 

petitions can be approved only for nationals of countries that DHS has designated, with 

1

 For the purpose of this report, only the H-1B (specialty worker) and H-2B (nonagricultural 

temporary/seasonal worker) petitions will be addressed. It is expected that these two visa categories are of 

high importance for temporary worker visa petitions associated with the Guam Realignment Project, owing 

to their exemptions from the statutory numerical limits. 2

 Exception: An alien beneficiary in a Department of Defense research and development or coproduction 

project may be authorized for a 10-year total period of stay. 3

 8 C.F.R § 214.2(h)(4)(ii) 

1
 
 

the concurrence of the Secretary of State.4 To qualify for H-2B nonimmigrant 

classification, the employer must provide evidence that: 

•	 The need for the prospective workers is temporary, regardless of whether the 

underlying job can be described as permanent or temporary;5 

•	 There are not sufficient U.S. workers who are able, willing, qualified, and 

available to do the temporary work; and, 

•	 The employment of H-2B workers will not adversely affect the wages and 

working conditions of similarly employed U.S. workers. 

More than 14,000 H-2B petitions were adjudicated in fiscal years 2008 and 2009. H-2B 

petitioners are not required to provide USCIS with the identity and date of birth of visa 

beneficiaries prior to obtaining visa petition approval. The number of H-2B visas that 

can be issued annually is capped at 66,000. 

Results of Review 

USCIS has the personnel, policies and procedures, and infrastructure necessary to process 

and adjudicate the estimated number of nonimmigrant temporary worker (H-1B and 

H-2B) visa petitions that will be needed to support the Guam Realignment Project. 

We did not assess the capabilities of the Department of Labor to process and approve 

foreign labor certifications or of the Department of State to conduct the required 

beneficiary interviews associated with the issuance of temporary worker visas. We are 

conducting a separate review to determine whether USCIS’ policies, processes, and 

internal controls governing the adjudication of temporary worker visa petitions address 

fraud and national security risks inherent in the visa adjudication process. 

4

 Effective January 19, 2010, nationals from the following countries are eligible to participate in the H-2B 

program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican 

Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, 

Lithuania, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, 

Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and 

Uruguay. See Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A 

and H-2B Visa Programs, 75 Fed. Reg. 2879, 2880 (January 19, 2010). 

5

 The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load 

need, or an intermittent need. 

2
 
 

 

 

USCIS Is Capable of Handling the Expected Increase in H-1B and H-2B 

Visas 

Volume of H-1B and H-2B Visas 

USCIS’ history of processing large numbers of H-1B and H-2B visa petitions indicates 

that it should have little difficulty addressing the relatively small volume of temporary 

worker petitions expected to be associated with the Guam Realignment Project. For 

example, between fiscal years 2008 and 2009, USCIS adjudicated more than 891,0006 

temporary worker visa petitions, of which approximately 662,000 (an average of 331,000 

petitions annually) were H-1B or H-2B petitions. In contrast, the Guam Realignment 

Project is not expected to generate more than 23,000 nonimmigrant worker petitions over 

a 5-year period. Effective January 18, 2009,7 DHS removed the requirements for H-2B 

visa petitioners to provide the identity of visa beneficiaries outside the United States, 

which should further expedite petition processing because adjudicators no longer have to 

perform time-consuming background checks of visa beneficiaries originating from 

overseas. 

Exemptions from Cap Requirements 

To ensure that enough visas are available for nonimmigrant workers to support the Guam 

Realignment Project, the Consolidated Natural Resources Act of 2008 (Public Law 110-

229) was enacted, exempting H-1B and H-2B nonimmigrant workers slated for Guam 

from the cap or established limits for H-1B and H-2B visas. In response to this special 

exemption, USCIS issued Memorandum HQ70/6.2.8, Numerical Limitation Exemption 

for H Nonimmigrants Employed in the CNMI and Guam, January 29, 2010, to update 

field guidance for its Immigration Services Officers responsible for adjudicating benefit 

petitions that fit the exemption criteria. Removing the cap limits the risk that an 

unexpected surge in applications could delay future Guam-related H-1B and H-2B 

processing and adjudications. 

USCIS Coordination with the U.S. Department of Defense 

On January 20, 2010, we met with the USCIS designated point of contact for the Guam 

Realignment Project (Honolulu District Office Director) and other USCIS officials from 

the Office of Policy and Strategy and the Directorate of Service Center Operations. 

According to the officials, USCIS has no formal roles or responsibilities pertaining to the 

project, and officials reported that they have communicated only with the Department of 

Defense (DOD) to emphasize the need to for a cap exemption. In addition, they 

6

 This number takes into account a variety of temporary worker situations including filing a petition: 

(1) seeking original H-1B/H-2B status, (2) seeking a change of status from another benefit category to an 

H-2B or H-1B visa, (3) seeking a time extension(s) for existing H-1B/H-2B visa holders, or (4) H-1B/H-2B
 

beneficiaries seeking authorization to change jobs. 

7

 Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 Fed. Reg. 78104,
 

78106 (December 19, 2008). 

3
 
explained that the estimated volume, when compared with regular production, should not 

be a “heavy lift” and that responsibility for processing and adjudication of these visa 

petitions has been delegated to the USCIS California Service Center. However, USCIS 

may enhance the process by contacting DOD to discuss establishing an informationsharing strategy for communicating results on the volume of adjudicated petitions 

associated with the project, to aid DOD in planning and managing construction efforts. 

Conclusion 

USCIS has the capability necessary to process and adjudicate all temporary 

nonimmigrant worker visa petitions needed to meet construction requirements in support 

of the Guam Realignment Project, barring any unforeseen circumstances or changes in 

USCIS capacity. 

Recommendation 

We recommend that the Associate Director, Service Center Operations Directorate: 

Recommendation: Develop a memorandum of understanding establishing an 

information-sharing strategy with the U.S. Department of Defense Joint Guam Program 

Office on the number and type of petitions approved, denied, or pending to aid in their 

planning and management of Guam Realignment Project construction activities for the 

out-years. 

Management Comments and OIG Analysis 

USCIS concurred with the recommendation and agreed that there is a need for a 

memorandum of understanding to establish an information-sharing strategy with the U.S. 

Department of Defense Joint Guam Program Office on the number and type of petitions 

approved, denied, or pending to aid in their planning and management of Guam 

Realignment Project construction activities for the out-years. We consider this 

recommendation unresolved and it will remain open until the USCIS provides details and 

documentation on actions taken so that we can determine whether these actions 

adequately address the substance of our recommendation. We have included a verbatim 

copy of the USCIS’ comments in Appendix B. 

4
 
Appendix A 

Purpose, Scope, and Methodology 

The objective of our audit was to determine whether the U.S. Department of Homeland 

Security, through its U.S. Citizenship and Immigration Services (USCIS), has the 

capability to process and adjudicate an adequate number of H-1B and H-2B temporary 

nonimmigrant worker visa petitions to support construction requirements associated with 

the Guam Realignment Project. This report is in response to an inquiry made during a 

meeting of the Interagency Coordination Group of Inspectors General for Guam 

Realignment. 

To accomplish our objective, we: 

•	 Reviewed the Consolidated Natural Resources Act of 2008 (Public Law 110-229) 

to determine guidance applicable to the numerical exemptions for temporary 

nonimmigrant workers to perform work in Guam; 

•	 Reviewed applicable sections of the Code of Federal Regulations establishing the 

policies for alien nonimmigrant workers to obtain temporary employment in the 

United States and its territory under the H-1B and H-2B programs; 

•	 Reviewed USCIS polices and procedures to determine whether adjudication 

guidance was implemented and in compliance with numerical visa limitation 

exemption criteria outlined in the Consolidated Natural Resources Act of 2008; 

•	 Interviewed USCIS senior accountable officials representing the Office of Policy 

and Strategy and the directorates of Service Center Operations and Field 

Operations; and 

•	 Reviewed USCIS production reports to determine the volume of completed 

adjudications across petition form types and applicable visa classifications. 

However, we did not test the validity or reliability of the data used for the reports 

provided. 

We performed fieldwork at USCIS facilities in the Washington, DC, area. We conducted 

our review between January and April 2010 under the authority of the Inspector General 

Act of 1978, as amended. The nature and brevity of this inquiry precluded the use of 

normal auditing standards. Therefore, it was not conducted according to generally 

accepted government auditing standards. 

We appreciate the cooperation by USCIS management and staff in providing the 

information and access necessary to accomplish this review. 

5 
Appendix B 

Managements Comments to the Draft Letter Report 

6 
Appendix C 

Major Contributors to This Report 

Richard T. Johnson, Director, Immigration and Enforcement 

Michael Talevi, Audit Manager 

David DeHaven, Auditor-in-Charge 

Paul Streit, Senior Auditor (Audit Manager) 

Marissa Weinshel, Program Analyst 

John C. Chamberlain, Program Analyst 

Peter Christopher, Program Analyst 

7 
Appendix D 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff 

Deputy Chief of Staff 

General Counsel 

Executive Secretariat 

Director, GAO/OIG Liaison Office 

Assistant Secretary for Office of Policy 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

Director, U.S. Citizenship and Immigration Services 

U.S. Citizenship and Immigration Services Liaison 

Associate Director, Service Center Operations Directorate, 

U.S. Citizenship and Immigration Services 

Associate Director, Fraud Detection and National Security 

Directorate 

U.S. Department of Defense 

Chairperson, Interagency Coordination Group (ICG) for Guam 

Realignment Project 

Executive Director, Joint Guam Program Office 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees, as 

appropriate 

8 
ADDITIONAL INFORMATION AND COPIES 

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fax your request to (202) 254-4305, or visit the OIG web site at www.dhs.gov/oig. 

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