United States: US Citizenship And Immigration Services Steps Up Enforcement Against H-1B Employers – Are You At Risk?

Targeted Site Visits

In an announcement issued April 4, 2017, US Citizenship and Immigration Services (USCIS) stated that it will begin a "more targeted" campaign of site visits to the worksites where H-1B beneficiaries are employed. This campaign is aimed at ensuring American workers are not discriminated against by the H-1B program. Under the new initiative, H-1B site visits will focus on three categories of employers:

  • H-1B dependent employers (generally, employers with 51 or more employees with at least 15% of their workforce composed of H-1B beneficiaries);  
  • Employers filing petitions for employees who will be assigned to work at the worksites of different companies; and  
  • Employers whose business information cannot be verified through commercially available data (including, primarily, the Validation Instrument for Business Enterprises (VIBE) tool, which is based on a Dun & Bradstreet database).

Targeted site visits are intended to identify employers engaging in fraud and abuse of the H-1B program; the goal is not to punish individual H-1B employees. USCIS has established an email address: reportH1Babuse@uscis.dhs.gov to allow American and H-1B workers, presumably anonymously, to submit tips, alleged violations, and other relevant information about potential fraud and abuse. Individuals are also able to report alleged violations to the Department of Labor's (DOL) Wage and Hour Division by submitting Form WH-4.

USCIS Site Visits – What to Expect

Site visits are conducted by officers of the Fraud Detection and National Security (FDNS) unit of USCIS. In most cases, the FDNS officer arrives unannounced and will typically spend anywhere from 15 to 90 minutes at the employer's site. The officer will likely ask to speak to a human resources manager. Infrequently, the H-1B beneficiary of the petition in question and his or her direct supervisor or manager may also be contacted.

The purpose of the site visit is to verify information in a specific immigration petition including information about the employer as well as the H-1B beneficiary in question. The officer will generally have a copy of the petition. The officer may also ask to view and/or photograph the employer's premises and the H-1B beneficiary's work area. The officer may also request additional documents such as payroll records or pay stubs for the H-1B beneficiary.

USCIS indicates it will continue random site visits nationwide. All employers of H-1B beneficiaries are therefore encouraged to adequately prepare for site visits.

Preparing for Site Visits – What to Do When USCIS Comes Knocking

An unexpected site visit by a USCIS officer may be an unnerving experience, but it should not generally cause concern for employers who have complied and documented their compliance by adhering to the DOL and USCIS requirements. To prepare for a site visit, employers should:

  • Retain copies of all I-129 petitions and their supporting documentation;
  • Ensure information contained in the H-1B petitions is at all times accurate and up to date;
  • Designate a "go-to" person, who is trained to respond to FDNS inquiries, for site visits;
  • Develop thorough site visit protocols that govern in detail how such visits will be handled;
  • If USCIS shows up unexpectedly, ask to have counsel present by phone so that your attorney can assist with any questions.

The Future of H-1B Workers

On March 31, 2017, USCIS issued a memorandum that may impact employers from hiring H-1B workers. The memorandum focuses on foreign workers employed as Computer Programmers, especially those in entry-level positions, and indicates that these workers may not qualify for a "specialty" H-1B visa because USCIS does not deem these positions to require a Bachelor's degree in a specific field. USCIS further indicates in its memorandum that this is not a change or departure in policy; however, from a practical standpoint, it appears that obtaining H-1B visas for entry-level IT-related foreign workers will be met with increasing scrutiny.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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