Scarinci Hollenbeck, LLC
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Author: Scarinci Hollenbeck, LLC
Date: May 17, 2017
The Firm
201-896-4100 info@sh-law.comThe 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.”
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:
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:
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.
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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.”
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:
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:
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.
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