Employers Cautioned Against H-1B Fraud and Abuse as Feds Focus on Deterrence and Detection

Citing a need to protect “American workers by combating fraud in our employment-based immigration programs,” the U.S. Citizenship and Immigration Services (USCIS) has announced plans to implement measures aimed at deterring and detecting H-1B visa fraud and abuse.  The new initiative, which seeks to identify employers who may overlook qualified American workers for open positions, will include targeted site visits at H-1B petitioners and the worksites of H-1B employees.  These visits will focus on:
 
  • 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.
 
In addition to these targeted site visits, the agency will continue to conduct random and unannounced visits nationwide to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification.  The agency has also created a website for individuals to share information, tips and alleged violations by employers engaging in H-1B fraud or abuse.  Such information will be used in investigations and may be referred to law enforcement agencies for potential prosecution.  One such agency, the Department of Justice, recently cautioned employers petitioning for H-1B visas not to discriminate against U.S. workers.
 
The H-1B visa program allows companies in the United States to temporarily employ foreign workers in specialty occupations such as science and information technology.  The anti-discrimination provision of the Immigration and Nationality Act (INA) generally prohibits employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing and recruiting. Employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers.
 
“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”
 
For more information about the new H-1B visa fraud and abuse detection initiative, visit the Combating Fraud and Abuse in the H-1B Visa Program web page.