Introduction
On April 3, 2017, the United States Citizenship and Immigration Services (USCIS) posted a news update titled “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Fraud and Abuse” [PDF version]. As the title suggests, the USCIS has announced new measures designed to ensure that fraud and abuse in the H1B program is detected, reported, and dealt with. Along with the news update, the USCIS released information regarding how it will institute enhanced fraud prevention measures in a post titled “Combating Fraud and Abuse in the H-1B Visa Program” [PDF version]. In this post, we will examine the USCIS’s new initiative in both of the aforementioned documents to combat fraud in the H1B program.
General Overview
The USCIS states that the purpose of the new fraud detection measures is to “[protect] American workers by combating fraud in our employment-based immigration programs…”
The USCIS states that, beginning on April 3, 2017, it would begin taking “a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H1B employees.”
The USCIS explains that these targeted visits will allow it to focus on cases where H1B fraud is most likely to be occurring. The USCIS will also continue to make “random and unannounced” site visits nationwide.
In the news release, the USCIS explains that the site visits will not target H1B nonimmigrant employees. Rather, the focus of the site visits is to identify employers who are abusing the H1B program.
New Initiatives for Combating H1B Fraud and Abuse
In the document titled “Combating Fraud and Abuse in the H-1B Visa Program,” the USCIS details how it will work to improve its capabilities to identify employers who are abusing the H1B program. In this section, we will detail the several initiatives in the order that they are presented by the USCIS.
Reporting Suspected H1B Fraud or Abuse
The USCIS has established an email address for individuals to send information regarding suspected H1B fraud or abuse. It makes clear that any individual with information — American workers and H1B workers alike — may send information to the USCIS. Those who are direct victims of the alleged fraud or abuse may use this new system.
The email address for reporting H1B fraud or abuse is: [email protected]
The USCIS requests that those sending emails about suspected fraud or abuse include the following information when communicating with the USCIS:
The name of the H1B petitioning employer/company;
The address of the employer/company or the location of the H1B worker(s), including the city and state;
A description of the alleged H1B violation, abuse, or suspected fraud;
The email address of the sender;
The name and phone number of the sender (optional); and
Any other relevant information that may be useful to the USCIS in investigating the allegations in the email.
There are two other methods for reporting suspected H1B fraud or abuse.
First, the USCIS encourages individuals to report allegations of employer fraud to the Department of Labor’s (DOL’s) Wage and Hour Division. This is done by submitting the Form WH-4 [PDF version current as of April 7, 2017]. The Form WH-4 and the filing instructions are found on the website of the DOL Wage and Hour Division.
Second, an individual may contact the ICE with information about suspected H1B fraud or abuse. This is done by using the ICE’s online HSI Tip Form.
Indicators of H1B Fraud or Abuse
The USCIS provides a non-exhaustive list of examples of H1B fraud or abuse indicators. The list is as follows (paraphrased):
The H1B worker is not or will not be paid the wage certified by the employer on the Labor Condition Application (LCA).
There exists a wage disparity between H1B workers and other workers performing the same or similar duties, to the detriment of U.S. workers.
The H1B worker is not performing the duties specified in the H1B petition. This includes performing duties at a higher level than the position description.
The H1B worker possesses less experience than U.S. workers in similar positions in the same company.
The H1B worker is not working in the intended location certified on the LCA.
Protections for H1B Workers Who Report Suspected H1B Fraud or Abuse
The USCIS may provide certain protections to H1B workers who report suspected H1B fraud or abuse by their employers. Such relief may be granted if such an H1B worker:
Applies to extend H1B status or change nonimmigrant status [see article];
Indicates that he or she faced retaliatory action from his or her employer for reporting an LCA violation; or
Lost or failed to maintain H1B status.
The USCIS explains that it may determine that any of the three above situations constitute “extraordinary circumstances” as defined in the regulations at 8 C.F.R. 214.1(c)(4) and 248.1(b). Under most circumstances, an H1B nonimmigrant is not eligible for an extension of status or a change of status if he or she lost or failed to maintain H1B status. However, if the individual can demonstrate that the loss or failure was due to “extraordinary circumstances,” the USCIS may in its discretion excuse the requirement that the individual be maintaining H1B status on a case-by-case basis.
Expansion of H1B Site Visits
In 2009, the USCIS began conducting random administrative site visits to ensure that employers and foreign workers are complying with all of the requirements H1B nonimmigrant classification. In such site visits, the USCIS verifies H1B workers’:
Wages;
Job duties; and
Work locations.
The USCIS explains that the site visits are not meant to target H1B nonimmigrants “for any kind of criminal or administrative action.” Rather, the purpose of the H1B site visits is to identify employers who are abusing the H1B program.
During H1B site visits, the USCIS seeks to determine whether H1B nonimmigrants are not being paid while in the United States while waiting for projects or work to commence. This practice, called “benching,” violates the immigration laws. The USCIS also conducts administrative site visits when it has reason to believe that the H1B employer is committing fraud or abuse.
If the USCIS finds evidence of fraud or abuse in a random site visit, it may refer the case to the ICE for further investigation.
In order to improve its fraud detection capabilities, the USCIS announced that, beginning on April 3, 2017, it would start making a more “targeted approach” to administrative site visits. This targeted approach will lead to the USCIS focusing its site visits on the following:
H1B-dependent employers (employers that have a high ration of H1B workers as compared to U.S. workers, as defined by statute);
When the UCCIS cannot validate the employer’s basic business information through commercially available data; and
When employers have petitioned for H1B workers who will work off-site at another company or organization’s location.
The USCIS further explains that the targeted site visits will help it “determine whether H1B-dependent employers who normally must meet H1B recruitment attestation requirements are actually paying their workers the statutorily required salary to qualify for an exemption from these requirements.” Furthermore, the site visits will help the USCIS determine whether the H1B-dependent employers are fulfilling their obligation to make a good-faith effort to recruit U.S. workers and to not displace U.S. workers.
The USCIS explains that the targeted site visits will allow it to focus its resources where fraud and abuse of the H1B program are most likely to occur. However, despite the targeted site visit initiative, the USCIS will continue to make random and unannounced visits to all H1B employers across the country. This means that employers who are not described in the priorities for targeted site visits will still be subject to random site visits. Such visits may occur before and after an H1B petition is adjudicated.
Promoting Transparency in the H1B Program
The USCIS announced that after the H1B cap filing season for fiscal year 2018 concludes, it will publish a report on H1B petitions submitted in fiscal year 2018 “along with data about the petitions.” The USCIS also plans “to create a web-based, searchable platform for the public to better understand how H-1B visas are being used.”
Conclusion
The most noteworthy aspect of the USCIS’s announcement is its plan to focus site visits on employers where H1B fraud is “most likely to occur.” This means that H1B-dependent employers and H1B employers who employ H1B workers offsite should be prepared for random and unannounced USCIS inspections. Additionally, the USCIS was careful to note that the targeted inspection program does not mean that non-targeted employers will be exempt from the random and unannounced inspections.
The new USCIS initiative in no way changes the obligation that each and every H1B employer has to carefully follow the rules of the H1B program. This includes fulfilling the terms described in the LCA and notifying the USCIS with regard to any changes that may affect the approval of the petition. When in doubt, an employer should consult with an experienced immigration attorney for guidance.
The USCIS also created an email address specifically designed for reporting H1B fraud and abuse. If an H1B employee suspects fraud or abuse on the part of his or her employer, or if he or she is the victim of said fraud or abuse, the H1B employee should consult with an experienced immigration attorney for guidance. An attorney will be able to assess the situation and, if necessary, help ensure that the interests of the H1B employee are protected.
Finally, the Department of Justice (DOJ) released a statement regarding H1B fraud or abuse on the same day. Please see our full article on the DOJ news release [see article].
