In late January 2011, US Citizenship and Immigration Services (USCIS) announced the implementation of a long anticipated information validation tool that USCIS will rely upon in its adjudication of employment-based visa petitions submitted by U.S. companies to the benefit of foreign national workers.
The newly implemented tool — Validation Instrument for Business Enterprises (VIBE) — reflects USCIS’ new-found reliance on Web-based information drawn from independent providers to verify visa petition information from employment visa sponsors for individual foreign workers.
VIBE allows USCIS to electronically receive commercially available information about a petitioning company or organization, including:
- Business activities (e.g., type of business)
- Trade payment information and status (active or inactive)
- Financial standing, including sales volume and credit standing
- Number of employees, including onsite and globally
- Relationships with other entities, including foreign affiliates
- Status (e.g., single entity, branch, subsidiary, or headquarters)
- Ownership and legal status (e.g., LLC, partnership, or corporation)
- Company executives
- Date of establishment as a business entity
- Current physical address
In practice, USCIS officers will review all information received through VIBE along with the evidence submitted by the petitioner in its employment visa petition for a foreign worker. Adjudicators will then use the information provided from VIBE to verify the petitioner’s qualifications. For example, according to USCIS, if a petitioner is seeking an L-1 employment visa for an employee of a multinational company, VIBE will purportedly help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. Furthermore, USCIS argues, in cases when petitioners must establish the company’s ability to pay an alien’s proffered wages, the information gleaned from VIBE will assist in confirming the petitioner’s financial viability.
VIBE reflects USCIS’ suspicion that visa-sponsoring enterprises commonly provide misinformation in their employment-based petitions. Most commonly, USCIS is relying on information received from Dun and Bradstreet (D&B), a publicly traded New Jersey company that provides information on businesses and corporations. D&B’s information reports cover more than 150 million companies worldwide and include any information that can be verified through the company’s patented DUNSRIGHT process that accesses information using a variety of sources, including public records, trade references, newspapers, publications, telephone interviews, and others. Because the information collected in D&B reports typically is information made publicly available, D&B reports are more accurate with larger-scale enterprises than with privately held companies whose mere public formation documents provide no information regarding ownership and financial performance.
USCIS states that it will not deny a petition based upon information from VIBE without first giving a petitioner the opportunity to respond to USCIS’ concerns. Instead, USCIS will issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested. The USCIS officer will make a final decision based on the totality of the circumstances.
In practical terms, an RFE or NOID from USCIS is triggered if your company’s D&B report has limited publicly available information. Under such circumstances, your company must amend or correct the D&B report by following the instructions on the D&B site. Once amended or corrected, D&B must utilize the DUNSRIGHT reporting program to verify the new information within 72 hours and thereby produce a new D&B report that — in theory — will now properly coincide with information in a submitted visa petition.
Employers should, therefore, add a step in the pre-filing stage of an employment-based visa requiring a review of their D&B reports and confirmation that the reports include the most accurate and updated company information available.