Tag Archives: immigration fraud

USCIS and H1B Visa Site Visits To Prevent Fraud

For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services (“CIS”) has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.

Why should employers care?
Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site. Any inconsistencies found can mean big trouble for employers.

FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However other sources say that employers are not required to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys may be present via telephone in these circumstances.

Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,” and “how can I prepare for a site visit from a CIS/FDNS investigator?” To address these issues in order, firstly any employer who has filed an H-1B petition can be subject to a site visit. While CIS claims the employers are chosen at random, close to 40,000 employers’ names have been selected for site visits. Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.

If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.

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. More specifically, the investigators may be looking for the following types of violations: job location not listed on the H-1B petition and/or LCA; H-1B worker not receiving the required wage; fraudulent H-1B documents or H-1B worker credentials; non-existent business or office location; job duties significantly different from those listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.

How can you prepare yourself and your company for a possible site visit? Step one is to ensure that you have Public Access Files (PAF) for each H-1B worker, and that the PAF documents are accurate and up to date. In general, it is a good idea to review and audit your H-1B/LCA records to make sure everything is in order and all information is readily available. Designate a specific individual at each H-1B worker location to meet the investigator should he/she arrive. Prepare a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so you don’t need to search frantically for this information while the investigator is there. If you are not sure what a PAF is, or if you’d like to have your documents reviewed by legal counsel, you may contact our office at the number or e-mail below.


Guest Author
David H. Nachman
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The H-1B Visa & US Immigration Fraud Cases Truth Revealed

In raids dating back to last October across New Jersey and California and then more recent Depart of Justice and State Law Enforcement raids in 7 states, many people have been arrested and organizations brought to a virtual standstill.

This all really is a part by many members of Congress who harbor an anti-immigrant sentiment in their War on the H-1B visa. They want to ensure they continue to be re-elected by pandering to bigots and keeping their electorates combines of such easily influenced people and not educated, hard working immigrants.

Some people have already been convicted receiving prison terms and large fines connected to this H1B Visa & Immigration fraud. Many of those targeted in the raids in California, New Jersey and recently in Massachusetts have been Indian Americans.

The maximum penalty for these crimes are 20 years in jail and/or $250,000 fine.

The findings back in October of the the United States Custom and Immigration Service (USCIS) report include the following;

1. The H-1B employer required the beneficiary to pay the ACWIA filings fee or deducted certain fees associated with filing the I-129 petition to obtain the H-1B visa, effectively lowering the beneficiary’s wages to less than the required prevailing wage. The filing fees are the responsibility of the employer but in practice this does not always take place.

2. The employer failed to pay the beneficiary at least the prevailing wage for the particular occupation in the specific geographical location, as noted and attested to on the LCA filed with DOL. So by filing an application with an address in a smaller state (like Iowa) thus with a lower average wage than where the applicant would actually be working (like New Jersey), they artificially lowered the wage they should have paid.

3. The beneficiary was working in a geographical location not covered by a valid LCA filed with DOL. This is a follow on of No.2 where in the above example there were authorized to work in Iowa but were elsewhere.

4. The employer placed the beneficiary in a non-productive status, commonly referred to as “benching” (where the beneficiaries are not paid or paid less than the full hours specified on the petition), when work was not immediately or continuously available. Employees have to be paid the prevailing wage at all times even when not on a project. Often Employers would force employees to sign fake long term absence forms due to illness to try and justify this illegal practice.

On the application itself it was found;

1. The business did not exist and thus it would just a sham application designed to get the applicant to the US under false pretences

2. The educational degrees or experience letters submitted were confirmed to be fraudulent;

3. Signatures had been forged on supporting documentation

4.The beneficiary was performing duties that were significantly different from those described on the LCA and I-129 petition. (In one instance, the position described on the petition and LCA was that of a business development analyst. However, when USCIS conducted its review, the petitioner stated they would be performing laundry duties)

Many of the cases reviewed exhibited multiple fraud indicators and/or technical violations.

KEY STATISTICAL FINDINGS:

From the US audit of 246 H1B petitions, it was found 51 (about 20%) had violation(s) of some degree. Not all warranted criminal prosecution but were fraudulent nonetheless.
The breakdown was as follows.

Fraud: 13.4% (33 cases)
Technical Violation(s): 7.3% (18 cases)
Overall Violation Rate: 20.7% (51 cases)

U.S. Attorney Matthew Whitaker said at a Feb. 12 press conference that the indictments were “just the tip of the iceberg” when it comes to U.S. visa fraud.

Summary

The strange thing about all of this is firstly that this has been going on for a long time and immigrants have been complaining to the Department of Labor of this unfair and illegal treatment continuously before now something was done.

Funnily enough of course, this investigation which initially came to a head last year as a criminal case against unscrupulous company, lawyers and government officials barely attracting any media attention, has now become a front page story.

Immigrants have been abused in the workplace by the American bosses verbally and in physical ways by being asked to perform extreme workloads and receive low pay rates being tantamount to slavery.

These people have a huge fear to report anything to the Department of Labor as their H1B visa or E3 visa depends on the employer’s sponsorship and thus without it they will be forced to leave the country given the crazy rules, restrictions¬† and short time you have to change employers on the H-1B visa.

However the punch line now is anti-immigrant and how for years foreigners have been taking US jobs which of course is supposed to cut deep at all the US workers who have been laid off in the current environment.

Of course nothing mentioned in these stories that it was another group of corrupt company and government officials that caused the Economic mess we are now all in.

Unfortunately the end result for the foreign applicant and family that may want to live and work in the US is that they have to be ever more vigelent. Look for the warning signs above and ensure that companies when dealing with you in the application process don’t expect you to lie to officials or on documents.

Finally there are US workers and Illegal Immigrants being abused in the workplace in the sense that their Fortune 500 companies are treating them as machinery rather than human beings. Of course given how strong the lobby is of these companies in Washington you would expect it to be business as usual.

CJ

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