WHAT’S HAPPENING
The United States Citizenship and Immigration Service (USCIS) announced on its website that it is taking additional measures to detect and prevent visa fraud and abuse, with specific focus on the H-1B visa. These measures for part of the Trump Administration’s initiative to put “American Workers First” and will take effect immediately. In its announcement, USCIS (1) provided clarification the five indicators of fraud and abuse that it will use to assess H-1B violations and (2) outlined several new vehicles for fraud abuse and detection. We outline each of these in greater detail:
I. Five Fraud and Abuse Indicators to Increase Protection of Wages and Job Opportunities for U.S. Workers
The announcement outlines the five indicia that USCIS will use to detect fraud and abuse, each of which are meant to identify employers who are abusing the H-1B program by decreasing wages and job opportunities for U.S. workers. These include:
Employers who are not paying the wage contained in the certified Labor Condition Application (LCA)
Wage disparities between H-1B workers and similarly situated U.S. workers, particularly where the disparity is to the detriment of U.S. workers
Employers who have H-1B workers performing job duties at a higher level than the position description contained in the H-1B petition or LCA
Employers who hire H-1B workers with less experience than comparable U.S. workers
Employers who employ H-1B workers at locations other than those identified in the certified LCA
As part of its mandate to protect U.S. workers, these enhanced, more targeted audit measures represent a departure from more routine USCIS audits and are meant to further identify potential wage disparities, misrepresented job duties or locations, and experience shortfalls of foreign workers as compared to their U.S. counterparts.
II. New Fraud and Abuse Detection Measures
USCIS will employ three additional measures to enhance their fraud and abuse detection and prevention capabilities. These include:
Providing Additional Means for the Public to Report Suspected Fraud and Abuse
USCIS has created virtual tip lines for members of the public to report suspected fraud and abuse, including a dedicated email address “ReportH1BAbuse@uscis.dhs.gov”.
The U.S. Department of Labor’s (DOL) Wage and Hour Division encourages individuals to report potential LCA violations on Form WH-4.
Immigration and Customs Enforcement (ICE) also encourages individuals to report suspected abuses on their “HSI tip form” though this is reserved for reporting suspected violations that rise to the level of criminal activity
Providing Protection to H-1B Whistleblowers Whose H-1B Status Has Lapsed - USCIS is providing an “extraordinary circumstance” exception for individuals whose H-1B status has or will lapse as a result of employer retaliation for reporting H-1B abuse. This exception will permit H-1B workers to extend their lapsed H-1B status or to change their status to another nonimmigrant visa status in specific and limited circumstances where they are able to demonstrate that their H-1B status lapsed as a result of employer retaliation. Note this provision was contained in the January 17, 2017, regulation regarding Retention of Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers
Site Visits Targeting “Problematic Workplace Scenarios” - USCIS will focus its enhanced site visits on employers who, in their view, have a higher likelihood of engaging in H-1B fraud and abuse, which include:
H-1B Dependent Employers - includes employers with a high ratio of H-1B employers as compared to U.S. workers who are typically required to either make a good faith effort to recruit U.S. workers or pay certain statutory salary minimums to avoid recruitment
Employers Who Place H-1B Workers at Third-Party Worksites - includes employer who place H-1B workers at client sites where USCIS will check to ensure that a bona fide employer-employee relationship exist between the H-1B petitioner and the beneficiary and that the H-1B petitioner has complied with all LCA obligations for third-party placement.
Employers Whose Existence USCIS Cannot Verify Based on Commercially Available Data - includes employers whose business information cannot be easily obtained or validated through commercially available data (such as Dun & Bradstreet), where USCIS site visits will be focussed on ensuring that the petitioner is a legitimate business able to pay the wage offered on the LCA.
WHO THIS IMPACTS
All H-1B employers should be prepared for additional scrutiny of H-1B visa petitions as well as the potential for continued site visits from USCIS. While USCIS has indicated that a particular focus will be placed on the “problematic workplace scenarios” outlined above, the Agency also noted that it will continue random and unannounced visits nationwide.
THINGS TO KEEP IN MIND
USCIS confirms that all site visits, both targeted and random, are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system. As such, employers should expect aggressive inquiries and take proactive measures to ensure that they do not become the target of a protracted fraud investigation. These include:
Implement/Review Company Site Inspection Protocols including:
Ensuring that front desk, security, and reception staff are aware of who to contact in the event of a site visit;
Identifying the “point person” who will liaise with the investigator conducting the site inspection, including an alternate in the event the person identified is out or on leave;
Preparing a list of documentation to provide to if requested and ensure such documentation is easily accessible in the event of a site inspection. This information typically includes:
H-1B beneficiary’s current position;
Current work location(s) (and itinerary/schedule if more than one work location);
Date of hire and date of any promotions including new job titles;
Beneficiary’s current job duties;
Name of any direct reports (if a supervisory position);
Name, title, and contact information for beneficiary’ supervisor/manager;
Copy of employment contract (if not a full-time employee); and
Beneficiary’s annual salary and pay frequency.
Informing H-1B workers and their managers of potential for job site visits and that they may be required to affirm their job title, job duties, wage, and work location with the site inspection officer.
Conduct a Compliance Audit of Company Public Access Files (PAFs) to ensure that records have been maintained in accordance with regulations and that PAFs are clearly organized, indexed, and do not contain extraneous employee information not required under the regulations.