| For the past few months, the U.S. Department of | | | | employees; companies with less than $10 million in |
| Homeland Security, Citizenship and Immigration | | | | sales; companies less than 10 years old; |
| Services ("CIS") has conducted an investigation | | | | accounting, HR, business analyst, sales and |
| program aimed at visiting H-1B petitioner | | | | advertising positions; and petitions where the |
| worksites throughout the U.S. These site visits | | | | beneficiary merely had a bachelor's degree, not an |
| began as part of the CIS' goal to decrease the | | | | advanced degree. |
| number of H-1B violations and instances of fraud | | | | If your company is visited and your records are |
| reported by the H-1B Benefit Fraud & | | | | in order, you have nothing to worry about. |
| Compliance Assessment from CIS' Office of | | | | Generally speaking employers are aware of |
| Fraud Detection and National Security ("FDNS"), | | | | inconsistencies before any investigative agency |
| published this past September. According to the | | | | may catch wind of it. That being said, if the |
| FDNS' findings, as many as one in five H-1B | | | | investigators uncover any inconsistencies or |
| applications were affected by either fraud or | | | | instances of fraud, the case may be referred to |
| "technical violations" of the H-1B program. | | | | U.S. Immigration and Customs Enforcement (ICE), |
| Why should employers care? Any employer who | | | | or the Department of Labor (DOL) for further |
| sponsored a foreign national worker for an H-1B | | | | investigation depending on the offense. This could |
| visa can be subject to an unannounced site visit. | | | | mean there will be monetary, and if egregious |
| What this means is that an investigator can | | | | offenses, possible criminal penalties for the |
| randomly show up at a worksite and demand to | | | | employer. |
| see a copy of the H-1B petition, interview the | | | | The objective of the unannounced on-site visits is |
| person who represented the company in | | | | clear: to detect fraud and abuses of the visa |
| connection with the H-1B as well as the H-1B | | | | program. According to USCIS, the offenses range |
| employee or other employees presently on site. | | | | from technical violations to outright fraud, with the |
| Any inconsistencies found can mean big trouble | | | | most common violation being the non- payment |
| for employers. | | | | of a prevailing wage to the H-1B beneficiary. More |
| FDNS has indicated that it does not need a | | | | specifically, the investigators may be looking for |
| subpoena in order to complete the site visit | | | | the following types of violations: job location not |
| because USCIS regulations governing the filing of | | | | listed on the H-1B petition and/or LCA; H-1B |
| immigration petitions allow the government to | | | | worker not receiving the required wage; |
| take testimony and conduct broad investigations | | | | fraudulent H-1B documents or H-1B worker |
| relating to the petitions. However other sources | | | | credentials; non-existent business or office |
| say that employers are not required to give in to | | | | location; job duties significantly different from |
| the investigators' demands without a subpoena. | | | | those listed on H-1B petition/LCA; |
| What to do? Our office recommends that you | | | | misrepresentation of H-1B status by the H-1B |
| always comply as much as possible with any | | | | worker (e.g., had been terminated from previous |
| investigative agency that shows up at your door. | | | | H-1B position prior to new employer H-1B being |
| CIS has indicated that attorneys can be present | | | | filed); and H-1B worker paid the $1500 ACWIA |
| during an inspection, but the investigator is not | | | | fee. |
| likely going to come back another day if the | | | | How can you prepare yourself and your company |
| attorney is not available on the day of the | | | | for a possible site visit? Step one is to ensure |
| unscheduled visit. Attorneys may be present via | | | | that you have Public Access Files (PAF) for each |
| telephone in these circumstances. | | | | H-1B worker, and that the PAF documents are |
| Some common questions that have been raised | | | | accurate and up to date. In general, it is a good |
| by employers include: "how are companies | | | | idea to review and audit your H-1B/LCA records |
| selected to be investigated," "if I am visited, | | | | to make sure everything is in order and all |
| should I be concerned," "what type of violations | | | | information is readily available. Designate a specific |
| are the investigators looking for," and "how can I | | | | individual at each H-1B worker location to meet |
| prepare for a site visit from a CIS/FDNS | | | | the investigator should he/she arrive. Prepare a |
| investigator?" To address these issues in order, | | | | quick list of facts about the company and also a |
| firstly any employer who has filed an H-1B petition | | | | listing of H-1B workers, work locations, title and |
| can be subject to a site visit. While CIS claims the | | | | salary information so you don't need to search |
| employers are chosen at random, close to 40,000 | | | | frantically for this information while the |
| employers' names have been selected for site | | | | investigator is there. If you are not sure what a |
| visits. Some factors that may have been taken | | | | PAF is, or if you'd like to have your documents |
| into consideration when selecting these 40,000 | | | | reviewed by legal counsel, you may contact our |
| employers include: companies with less than 15 | | | | office at the number or e-mail below. |