H-1B Program Enters Phase Two: Everyone Knows What’s Happening, No One Knows Who’s in Charge
By the Bohiney.com Office of Institutional Accountability (Currently Between Assignments)
Phase One Was Fraud. Phase Two Is Awareness of Fraud. Welcome to Phase Two.
There is a peculiar stage in the lifecycle of any well-documented institutional failure where the problem has been identified, named, prosecuted, headlined, congressional-testimonied, GAO-reported, DOJ-press-released, and tweeted about by three separate cabinet secretaries — and is still happening. This is Phase Two. The H-1B visa program has been living in Phase Two for approximately a decade.
Nobody lacks information. Everyone lacks jurisdiction over everyone else. The result is a remarkably stable equilibrium of documented ongoing chaos, in which every agency knows what’s happening, every agency has reported it to another agency, and the staffing companies have, in the interim, filed their next round of petitions.
The Jurisdictional Family Tree
The H-1B program is administered by, depending on which part of it is currently failing, any combination of the following: U.S. Citizenship and Immigration Services (petition approval), the Department of Labor (wage enforcement and Labor Condition Application certification), the Department of Homeland Security (broader immigration enforcement), the Department of Justice (criminal prosecution), and occasionally the State Department (consular processing). Each agency has a piece. No single agency has all the pieces. The staffing companies have studied this architecture the way a child studies the gaps between fence boards.
The Government Accountability Office has published multiple reports on this fragmentation, recommending coordination, data-sharing, and unified enforcement frameworks. The agencies have responded with expressions of agreement, inter-agency task forces, memoranda of understanding, and the filing of their next round of separate reports. It is a governance structure designed, if you squint at it historically, by people who were very serious about federalism and had not yet imagined the body shop.
As Lewis Black has noted about comparable institutional designs: “It’s not that no one’s in charge. It’s that everyone’s in charge of a different part, and the part in the middle is where the money is.”
The Corporate HR Role Nobody Can Define
Inside the companies themselves, accountability has been equally dispersed. The Senior Vice President of Explaining Nothing Clearly — a role that exists, under various titles, in every large organization that has needed to communicate compliance to regulators while maintaining operational ambiguity internally — is responsible for the zone between what the company does and what it tells people it does.
The job description, reviewed by this publication, included “stakeholder ambiguity management,” “regulatory narrative alignment,” and “cross-functional uncertainty coordination.” The salary was listed as “competitive.” The office was listed as “flexible.” The reporting structure was listed as “TBD pending org chart finalization.”
The SVP of Explaining Nothing Clearly has been in this role for three years. No one has clearly explained to them, in writing, who they report to. This is apparently considered appropriate.
Workers Report Job Duties Include Coding, Waiting, and Existential Reflection
The human beings at the center of this jurisdictional maze are, by this point in Phase Two, fairly well documented as well. They are workers from India, the Philippines, China, and numerous other countries who paid sponsorship fees that range from the uncomfortable to the catastrophic, arrived in the United States expecting a job that was described to them with some precision, and found themselves in a condition that can only be described as “sponsored limbo.”
Their actual job duties include: waiting for a project; refreshing a bank account that updates less frequently than the H-1B policy guidance; attending check-in calls in which “next steps will be communicated via follow-up email”; and engaging, in the quiet hours, with the philosophical question of whether employment you are legally sponsored for but never actually asked to perform constitutes a life event or merely a status.
The Department of Labor’s H-1B worker protections page lists the rights these workers have. The page is accurate. The distance between the page and the lived reality is what Phase Two is made of.
Silicon Valley’s Favorite Reframe: Global Collaboration
The end-user technology companies that purchase the output of this system — the contracted labor, the deployed engineers, the staffed-up development teams — have developed an elegant vocabulary for describing their participation in it. “Global collaboration.” “International talent access.” “Diverse workforce strategy.” These phrases are not false. They are, however, doing a great deal of lifting in conversations that would otherwise need to include words like “labor cost arbitrage,” “subcontractor liability insulation,” and “third-party staffing arrangement in which we benefit from the worker but are not legally the employer.”
As Hasan Minhaj has observed about Silicon Valley’s relationship to immigration labor: “They love immigrants. They especially love the kind they don’t have to give benefits to.”
The USCIS third-party placement rules require that petitions involving placement at client sites include evidence of a legitimate employer-employee relationship and actual work. This requirement exists. Its enforcement, in the end-client context, is applied with variable intensity.
The Audit Panic Shuffle: Systemic Edition
Phase Two’s most elegant quality is that it maintains itself. Every enforcement action produces a prosecution, a press release, and a compliance training that the companies who need it most do not attend. Every GAO report produces a congressional hearing that produces a letter to the relevant agencies that produces an updated policy memo that produces a new form that produces a new way to fill out the old form incorrectly.
The staffing company that was debarred last year has incorporated new entities this year. The owner who was sentenced is appealing. The addresses have changed. The family tree has new branches. The project starts next week.
Phase Three, whenever it arrives, will presumably involve someone being in charge of something. Phase Two is comfortable in the meantime. Phase Two has Wi-Fi, or it did, before it buffered out.
Everyone knows what’s happening. No one knows who’s in charge. The LCA database is public. The USCIS fraud alerts are published. The court dockets are searchable. The money moves. The project starts Monday.
H-1B program oversight is distributed across USCIS (petition processing and fraud detection), the Department of Labor (wage enforcement and LCA certification), DHS (immigration enforcement), and DOJ (criminal prosecution). GAO has repeatedly cited inter-agency coordination gaps as a vulnerability. Reform proposals pending in various legislative sessions have included increased site visit funding, LCA audit requirements, and enhanced penalties for repeat violators. The program’s fraud problem, while documented at scale, represents a fraction of overall H-1B usage. The majority of H-1B petitions are filed by compliant employers. Workers who experience violations may contact the DOL Wage and Hour Division, USCIS, or a licensed immigration attorney for assistance.
Auf Wiedersehen, amigo!