A study done last year by the U.S. Citizenship and Immigration Service ("USCIS") found as many as one-in-five H-1B applications were affected by either fraud or "technical violations," of the H-1B program. This may be the impetus behind USCIS’ increased anti-fraud enforcement efforts.
Whatever the reason behind such stepped-up efforts, there is no doubt that the USCIS has begun making more and more "surprise visits" to the U.S. work sites of companies that sponsor H-1B visa holders.
The Office of Fraud Detection and National Security ("FDNS"), a division housed within USCIS National Security and Records Verification Directorate, was created in 2004 to enhance the quality, integrity and security of the U.S. legal immigration system. According to USCIS, FDNS’ primary mission is to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts aimed at ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit to the law enforcement and intelligence communities.
USCIS has confirmed that the agency has begun conducting random on-site inspections as part of the expansion of its Administrative Site Visit and Verification Program, launched at the beginning of this fiscal year. This new program involves the hiring of private contractors to send "investigators" out to conduct site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition. Such investigators come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa.
The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non- payment of a prevailing wage to the H-1B beneficiary. Arguments can certainly be made that the use of minimally trained contractors to conduct such audits is not an efficient use of the $500 Fraud Fee paid by H-1B petitioners.
The foregoing notwithstanding, it behooves all H-1B petitioners (whether they be small IT companies or Fortune 500 companies), to make sure that their houses (i.e., their Public Access files (“PAF”)) are in order. Aside from the ability to produce evidence of payment of the proper wage, H-1B employers must maintain in the PAF the original LCA (with dates of posting), a wage memorandum outlining how the wage was determined and a copy of the relevant prevailing wage data. Moreover, evidence of timely notification to USCIS of the termination (whether voluntary or not) of H-1B workers must be available. Finally, with respect to each H-1B worker who was involuntarily terminated prior to his/her authorized period of stay, there should be evidence of an offer of return transportation to the H-1B worker’s last country of residence.
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Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP