By now, you have undoubtedly heard about the current administration’s plan to build a wall along the U.S.-Mexico border, and about the proposed travel ban against foreign nationals from certain countries (which continues to be vigorously contested in court). Most recently, U.S. Citizenship & Immigration Services (USCIS or the Immigration Service) announced its plan to combat fraud and abuse in the H-1B Visa Program. The H-1B Visa is a highly popular nonimmigrant visa available to foreign nationals who are being offered a “specialty occupation” position as defined by immigration statutes and regulations. The Immigration Service has a unit dedicated to preventing fraudulent use of this visa. (If your company has ever filed an H-1B petition on behalf of an employee, you may recall paying a $500 fraud prevention fee – that fee is used to fund the Immigration Service’s site visits, interviews, and investigations).
As part of its efforts to eliminate fraud or abuse, USCIS has created an email address that anyone (including U.S. workers) can use to report any information concerning possible fraud or abuse. USCIS provides examples of H-1B fraud and abuse as follows:
- H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA)
- There is a wage discrepancy between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers
- H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description
- H-1B worker has less experience than U.S. workers in similar positions in the same company
- H-1B worker is not working in the worksite location listed on the LCA
(Side note to employers: You must let your immigration counsel know before there is any change to an H-1B employee’s worksite location, employer (e.g., being transferred to an affiliate or subsidiary), or position (change in job duties, a promotion, etc.), as an amended H-1B petition may be required prior to the change taking effect.)
According to the Immigration Service, if your company falls into one of the following categories, you are more likely to have the government knocking at your door looking into possible H-1B fraud and abuse:
- Your company is H-1B dependent (i.e., high ratio of H-1B workers as compared to U.S. workers)
- USCIS cannot validate employer’s basic business information through commercially available data
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location
The Trump administration is continuing to ramp up its efforts on multiple fronts to tackle various issues in immigration law. We expect the administration to continue to take a tough stand, and we will provide updates as changes are announced. In the meantime, if you have any questions or concerns about USCIS’s latest plan to address H-1B fraud and abuse, please do not hesitate to contact us.