Bad “VIBES” – New validation tool will give employers of foreign nationals the “willies”

Employers who hire foreign nationals are about to face new challenges in obtaining work-related visas.   The United States Citizenship and Immigration Service (USCIS) is moving a test project into the real world.  So, the already enforcement-rich environment is getting richer.  It’s called VIBE and business leaders need additional preparation when looking to add the expertise foreign nationals can provide.

What is VIBE?

The Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance the decision-making ability on certain employment-based immigration petitions. VIBE uses commercially available data to validate basic information about those petitioning for alien workers.

VIBE allows the USCIS to electronically receive commercially available information from an independent information provider about a petitioning company or organization.  This information includes:

• Business activities, such as type of business (North American Industry Classification System code), 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, for example whether it is a single entity, branch, subsidiary or headquarters
• Ownership and legal status, such as LLC, partnership or corporation
• Company executives
• Date of establishment as a business entity
• Current physical address

A USCIS officer will review information received through VIBE along with the evidence submitted by the petitioner. Staff will use the information to verify petitioner qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help confirm requirements such as whether the petitioner has a foreign affiliate. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming financial viability.

Who will be affected?

VIBE will affect almost all companies that employ foreign nationals.  The only exclusions from VIBE are for employers sponsoring individuals of extraordinary ability, individuals pursuing national interest waivers, or O and P visas (individuals with extraordinary ability or achievement, or internationally recognized athletes, entertainment groups, and certain performers and artists).

How will I know that VIBE has affected my company?

Officials at USCIS say they will not deny petitions based upon information from VIBE unless the petitioner has been granted opportunity to respond to concerns. The 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 VIBE information.  The Immigration Services Officer (ISO) will make final decisions based on the totality of the circumstances.

Where does USCIS get the information about my company?

The USCIS has indicated that it has contracted with Dun & Bradstreet to serve as the independent information provider for VIBE.

How can I view the information in my company or organization’s D&B report?

D&B provides two ways a company or organization may request a copy of its D&B report: 

• Calling D&B’s toll free Customer Support Center at 1-800-234-DUNS (3867)
• Use D&B's Internet-based service, “e-update” at www.dnb.com/eupdate.

There is no fee for a company or organization to view its own D&B report or update its information with D&B.

I have requested my company or organization’s report from D&B, but I found out that D&B does not yet have any information. What should I do?

If you find that D&B does not yet have any information about your company or organization, you may request a D-U-N-S® Number from D&B. The D-U-N-S® Number is a unique nine-digit identification sequence developed by D&B that provides a unique identifier of single business entities, while linking corporate family structures.

To request a number, call 1-800-234-DUNS (3867) or visit www.dnb.com and click the “Get a D&B D-U-N-S® Number” link in the “Customer Resources” section.

USCIS does not require petitioners to have a D-U-N-S® Number or include one when filing a petition and not having one will not activate the automatic issue an RFE or NOID if an employer’s information is not included in the D&B database.

How long does it take D&B to update information?

D&B says it generally completes its verification process within two to seven business days. Upon completion, the updated information is included in the customer’s record.  It typically takes fewer than 30 days to fulfill requests for new D-U-N-S® Numbers.

What is the legal significance of VIBE to evaluate my company’s immigration petitions?

From a legal prospective, the use of VIBE raises concerns.  I expect employers will see more RFEs and NOIDs.  In my experience, when federal immigration authorities begin a new program to help validate information there are significant errors from the information provider.  When E-Verify started using information databases from the Social Security Administration, it deemed a significant number of U.S. citizens unauthorized to work here.  This increased burdens on both employers and employees during the hiring process.  I expect VIBE to produce similar errors.

Additionally, the use of VIBE will probably run against several rules that the USCIS established long ago.  For example, the USCIS Adjudicator’s Field Manual (AFM) advises staffers not to engage in “fishing expeditions.”  Chapter 10.5(a)(2) requires measured, targeted requests of evidence that truly are necessary to adjudicate the case and prohibits “fish[ing]” for evidence.  Overbroad RFEs burdens USCIS resources and the employer.

Further, AFM Chapter 10.3(a) requires thorough review of each case to determine whether the petitioner (employer) has submitted the required supporting documentation.  If the employer has submitted the required supporting documentation, regulations require approval of the petition.  If USCIS uses VIBE to verify information and it issues an RFE or NOID simply because of that information, then the government has effectively added an additional presumption against the employer’s petition and the company has to provide evidence to rebut.  Regulatory or statutory law simply does not support an additional rebuttable presumption employers must overcome.

I also expect more NOIDs than RFEs because of VIBE.  If the USCIS follows its own rules, a NOID is appropriate when there is evidence of ineligibility or derogatory information not known to the applicant or petitioner (employer).  In many cases, the employer simply cannot know every bit of information contained in a commercial database.

Finally, we often see that a USCIS adjudicator implicitly (but erroneously) requires companies to prove eligibility for an immigration benefit by conclusive evidence.  In almost all cases, the company bears the burden of proof, but often the USCIS confuses the burden of proof with the standard of proof, which is usually a preponderance of the evidence.  Under AFM Chapter 11.1(c), the preponderance of the evidence standard is met “if there is a greater than 50% probably of the matter occurring or if ‘it is more likely than not’ that the matter has occurred.” 

In other words, even if the USCIS has some doubt, if the company provides “relevant, probative and credible evidence” meeting the preponderance standard, the government should approve the petition.  Information seen on a computer screen can somehow appear “more real” than reality.  I predict that we will see more adjudicators requiring conclusive evidence because of VIBE.

Conclusion

VIBE information will be a delicious mouthful of hearsay evidence that once tasted, becomes irresistible and conclusive in nature.  In most court and other adjudicatory cases, hearsay is inadmissible – for obvious reasons – but the USCIS has moved VIBE into reality.  The USCIS has its forks and spoons polished to consume vast, unknown, amounts of data in order to “validate” the sworn statements on immigration petitions.  Now, more than ever, companies that employ foreign nationals should work closely with their attorneys when planning to bring international expertise or labor to their company.

David J. Garrett is an attorney in the Raleigh office of Nexsen Pruet.  His primary focus is on assisting businesses with immigration-related matters.  He also represents individuals and corporate clients in various industries, including manufacturing, construction, trucking, pavement markings, the import/export of raw materials and technology.

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