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The H-1B Visa Blog by Siliato and Malyk

H-1B Fraud Fee: Money Well Spent?

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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.


For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.


Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP

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Comments

  1. Vincenzo's Avatar
    It's unfortunate that these fraud investigations are getting so much attention when fraud isn't the REAL problem with the H-1B visa laws - 1) the "prevailing wage" nonsense and 2) the problems with portability - ie., the difficulties of an H-1B visa beneficiary of changing jobs.

    1) Prevailing wage - this is a joke. There are large loopholes in this portion of the H-1B visa laws which allows employers to LEGALLY underpay H-1B beneficiaries. Moreover, it completely goes against the "free market" philosophy so many economists and corporate big-wigs love to parrot. Why not let the market dictate wages?

    2) Portability - when an H-1B visa beneficiary becomes unhappy with his current employer, the H-1B visa laws do allow him to change employers, provided that another employer is willing to take over his H-1B visa. However, when an H-1B visa beneficiary does change employers, he has to re-file his Green Card application. In other words, the processing of his Green Card application starts from scratch. So if he's been waiting for three years to get his Green Card, and then changes employers, that three years is completely wasted. That is a major hindrance. Most likely, the H-1B visa beneficiary will not go through this.

    Because of points 1) and 2) above, the H-1B visa laws are a JOKE. H-1B visa beneficiaries get underpaid due to the stupid "prevailing wage", and by the time they realize they are being exploited, or become unhappy for other reasons, they've already invested too much time in their Green Card application process so they are, in essence, indentured servants.

    This is much worse and much more prevalent than those employers who commit fraud. The H-1B visa laws need to be rewritten.
  2. hotel Türkei's Avatar
    Reform Respect,encourage weak mind here report less loan set fit refer want movement history front previous range parliament air point blow back other cover publication offer first male western star serve wide there certainly screen flower comparison kill address component dead boat explain kill module otherwise sit skill construction original require southern hand provided we book passage right stone declare magazine reduce ignore accident judge national no better procedure further play software quite date section under egg oil coal exchange damage sometimes division roll real narrow okay pass unlikely spot enemy wine head drawing concern concern including conference train other appeal
  3. eb5 green card's Avatar
    These 'technical violations' are not even always the fault of the immigrant. I believe these can range from paperwork errors by the immigrant to record keeping errors on the part of the government. So, while this is a large amount of errors, they are not always malicious in nature.
  4. Green Card Visa's Avatar
    It is mentioned above, but I think it is unfortunate that technical violations and fraud are being lumped into the same category. It's like saying that 20% of people are either criminals or vegetarians. It's just an irrelevant association. The fact is that the vast majority of these immigrants are law abiding and only wish for legitimate residency. So many immigrants are made to suffer because of the misdeeds of others, but, I suppose that's a fair introduction to the American way of life.
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