Regulators Targeting H-1B Visa Fraud and Abuse

Regulators Targeting H-1B Visa Fraud and Abuse

The Department of Labor (DOL) recently announced plans to crackdown on H-1B visa fraud and abuse. The new immigration policy reflects President Donald Trump’s promise to “put American workers first.”

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Hiring Skilled Workers from Overseas

U.S. companies, particularly those in the technology industry, often rely on H-1B visas to hire highly-educated, skilled, and specialized workers from overseas. Employees can remain in the country in this status for a total of six (6) years. In 2016, an estimated 236,000 workers applied for 85,000 available H-1B visas, according to the U.S. Citizenship and Immigration Services (USCIS). 

The Immigration and Nationality Act (INA) applies to employers who rely on workers with H-1B visas. Among other obligations, employers must first file a Labor Condition Application (LCA) with the DOL that confirms it will, among other things: pay the nonimmigrant workers at least the local prevailing wage or the employer’s actual wage, whichever is higher; offer benefits on the same basis as for U.S. workers, and provide working conditions for H-1B workers that will not adversely affect the working conditions of workers similarly employed.

H-1B dependent employers, defined as those employers whose H-1B workers comprise 15 percent or more of the employer’s full-time equivalent employees, are subject to additional requirements. The additional requirements require that:

• The employer will not displace any similarly employed U.S. worker within 90 days before or after the date of the filing of any visa petition supported by an LCA;
• The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and
• The employer, before applying for H-1B status for any alien worker, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker.

New DOL H-IB Visa Initiative

Critics of the H-IB visa program maintain that it can place U.S. workers at a disadvantage. The DOL said in a press statement that the department “fully supports the Department of Justice in cautioning employers who petition for H-1B visas not to discriminate against U.S. workers,” as well as the Department of Homeland Security’s “measures to further deter and detect H-1B visa fraud and abuse.” The department also stated that “in recent years, some employers have used the H-1B program to hire foreign workers despite American workers being qualified and available for work or even to replace American workers.”

According to the DOL, it plans to take the following actions to bring “greater transparency and oversight” to the H-1B program:

• Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.
• Consider changes to the LCA for future application cycles. The LCA, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public; and 
• Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes. 

USCIS Targeted Site Visits to Uncover H-1B Fraud

USCIS also announced new initiatives intended to deter and detect H-1B visa abuse. The agency plans to take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. Factors that USCIS will consider when determining where to focus its resources include: cases where USCIS cannot validate the employer’s basic business information through commercially available data; H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Employers should also be aware that USCIS has also established an email address which will allow individuals to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information provided will be used for investigations and referrals to law enforcement agencies for potential prosecution.