On July 19, 2017, MPLG attorneys attended a USCIS hosted Employment Visa Engagement event at the USPTO in San Jose, CA. Representatives from the USCIS, Western Regional, Fraud Detection & National Security (FDNS) Unit spoke at this event. They discussed their new targeted site visit program following the April 3, 2017 USCIS directive,“Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse.”
Targeted Site Visits
Prior to this directive, USCIS had conducted random administrative site visits since 2009 to ensure H-1B compliance. USCIS now intends to conduct “targeted site visits” focusing on:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers; and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location. (These are often known as “Consulting Companies.”)
- According to Mr. Kenneth Takeda, Western Regional Assistant Director of FDNS, the highest incidents of reported H-1B fraud have been in New Jersey and in the San Francisco Bay Area. Thus, employers in these particular geographic regions may anticipate a higher rate of site visits.
Preparing for Site Visits
USCIS may not announce that it will be making a site visit. Mr. Takeda described some of the common issues addressed during site visits including:
- Determining if the H-1B worker is being paid per the terms of the H-1B petition;
- Whether there is any disparity in wages between H-1B workers and US workers;
- Whether the H-1B worker is performing the duties that are specified in the petition;
- Whether the H-1B worker is at the intended worksites stated on the petition.
The USCIS representative conducting the site visit may ask to meet with the H-1B worker separately from an employer representative. The representative may follow-up with a request for additional documentary records.
To ensure that the site visit goes smoothly, it is critical that an employer properly maintains its Public Access Files. These files must be created at the time an H-1B petition is filed.
An employer can request to have their attorney present during a site visit, and can have their attorney respond to any written requests by USCIS. If you are visited by a USCIS officer, please do not hesitate to contact our office so that an attorney can be present either in person or via phone for the duration of the visit.
H-1B Program Being Scrutinized
Employers are not required to first recruit U.S. workers before hiring an H-1B worker, unless they are H-1B dependent. However, H-1B dependent employers can be exempted from recruitment attestations if they will either be paying the H-1B worker at least $60,000 or the H-1B worker has a related Master’s degree. The premise behind not requiring recruitment stems from the belief that U.S. employers should be able to secure temporary talent regardless of where that talent originates. However, when permanent Green Card benefits are offered, the U.S. employer must indeed first recruit for US workers before offering the position to a foreign worker.
Despite these distinctions built into the H-1B and the PERM programs, the Justice Department issued a directive on the same date as the USCIS directive entitled, “Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate Against U.S. Workers.” The tenor of the USCIS memo and the DOJ press release suggest concerns about the veracity of the H-1B program and employers that utilize this critical tool for global competitiveness.
We at MPLG, believe that the H-1B program is an important means for ensuring growth and vitality especially for our technology and science sectors.