H-1B Sponsors: Prepare for Site Visits and Increased Enforcement

By: Vishal Chander

On April 3, 2017, USCIS announced a program to deter and detect H-1B fraud and abuse.  In the announcement, USCIS stated that too many American workers are ignored or unfairly disadvantaged as a result of the H‑1B visa program.  In an effort to combat fraud, USCIS will implement a targeted site visit program with the following focuses:

 

  1. Employers where basic business information cannot be validated through commercially available data
  2. H-1B dependent employers
  3. H-1B employers who work off-site at another company or organization location

 

The announcement emphasizes that the focus of enforcement will be where fraud and abuse of the H‑1B program may occur.  USCIS stated that it will continue random nationwide site visits.  USCIS also stated that the enforcement is not meant to target nonimmigrant employees for criminal or administrative action, but rather to identify employers abusing the system.

 

USCIS has also announced an email where reports of abuse can be reported.  The email address is:  REPORTH1BABUSE@USCIS.DHS.GOV and is meant for both American and foreign workers to report H-1B violations.

 

While the announcement marks an apparent change in policy, administrative mechanisms have existed for reporting and prosecuting violations of the H-1B program.  However, prosecution of the violations can take up to three years.  Furthermore, prior to regulatory changes implemented by the Obama administration, few protections existed for whistleblowers.  

 

Preparation for Possible Enforcement

 

Employers should take several actions to prepare for the possibility of an enforcement action.

 

H-1B employers should make sure that their Public Inspection File is in good order for each H-1B worker.  The public inspection file is required under the H-1B regulations.  A copy must be kept at the location of the H-1B employer and any worksite the H-1B employee is placed.  The file must be made available at request to anyone.  The Public Inspection File contains a copy of the LCA, information and methodology for calculating the wage, and a summary of benefits. 

 

The H-1B employer should make sure the Audit Inspection File is in good order.  The audit inspection file includes the original LCA, evidence the employee has been provided a copy of the LCA, evidence that notice of the filing of the LCA has been given, and more specific wage information.  The employer should also make sure that payroll history can be easily prepared for an H-1B employee if it is requested. 

 

Relatively new companies which don’t have an established credit history should look to ensure that their information is recorded, up to date, and made available by Dun & Bradstreet.  USCIS uses the Validation Instrument for Business Enterprises (VIBE) program to review company information.  The system is merely a private contract to Dun & Bradstreet and references Dun & Bradstreet’s information on businesses.  Ensuring company information is up to date with Dun & Bradstreet is a small action companies can make to reduce the potential for an H-1B enforcement action.

 

Secondary Displacement: Where H-1B Fraud Occurs

 

Most H-1B abuse occurs through an action described by the H-1B regulations as Secondary Displacement.  Secondary Displacement is most often seen on worksites where there are H-1B workers in consulting positions.  These H-1B consultants are often paid significantly less than U.S. workers in similar positions.  This is not the fault of the H-1B worker.  Blame should be placed on the worksite company and consulting firm employing the H-1B worker.  H-1B consulting firms often file H-1B petitions using job requirements lower than what is actually required for the position at the worksite.  The H-1B employer is then paid a lower wage than the position would require under the H-1B regulations.  H‑1B consulting firms earn their profit by taking the difference in the wage the H-1B worker should be paid and wage the worker receives.  Over time, secondary displacement has reduced the overall wages of U.S. workers.  This can be seen in the lowering of wages over the years for the Department of Labor occupational classification Computer Programmers.

 

Workers who believe they have been affected by Secondary Displacement may wish to contact a plaintiff-side employment lawyer to file an administrative claim for H-1B violations.  U.S. workers should work together with H-1B workers, who may be entitled to significant unpaid wages. 

 

Related Links:

 

https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse



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Vishal Chander
Gardere Wynne Sewell LLP
1601 Elm Street Suite 3000
Dallas, Texas 75201
(214) 677-4990

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1 (888) 310-4044

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