H-1B Employers Beware – USCIS Launches Site Visits to Investigate H-1B workers

H-1B Employers Beware – USCIS Launches Site Visits to Investigate H-1B Workers

Similar to other immigration-related audits and raids, U.S. Citizenship and Immigration Services (USCIS) recently began a new anti-fraud initiative to investigate and seek out potential abuses of the H-1B temporary worker program. The H-1B visa category is limited to highly-skilled, specialty occupation workers who hold a minimum of baccalaureate level education. Under this new anti-fraud initiative, USCIS has hired private contractors to conduct approximately 25,000 random site visits of H-1B employers across the country. The purpose of these visits is to confirm the legitimacy of the employing entity, that the H-1B employee is actually working for the employer and that the terms and conditions of the employment are as described in the H-1B visa petition and related documentation submitted to USCIS and the U.S. Department of Labor (DOL).

According to USCIS, these random site visits are part of the government's larger anti-fraud enforcement efforts in response to reported abuses of the H-1B visa program. The funding for this initiative is coming from the $500 Anti-Fraud filing fee included with all new H-1B petitions. A study conducted by the government's Office of Fraud Detection and National Security last year estimated that approximately 21 percent of approved H-1B petitions violate the H-1B requirements. The most common offense was failure to capture the H-1B worker's work location(s). H-1B workers are only authorized to work at locations specifically identified in the employer's I-129 Petition filed with USCIS and the Labor Condition Application filed with DOL. Another common offense was failure to pay the requisite wage to the H-1B employee. All H-1B employers must pay the higher of the actual or prevailing rate of pay for the occupation.

What Should Employers Do Now to Prepare for H-1B Site Visits?

Employers should identify a company contact (likely within the legal or human resources department) to serve as the lead contact during a potential site visit, interact with the USCIS investigator and provide the requested information. Please note, the USCIS investigator may ask to speak with the employer representative who signed the I-129 Petition for H-1B status.

The investigator may also ask to speak with both a human resources representative familiar with the H-1B employment and the H-1B employee beneficiary. As such, employers should take steps now to confirm that both the company and the H-1B worker are prepared to answer specific questions about the H-1B employment and that all relevant parties are familiar with the specific position title/ description and wage information contained in the H-1B petition.

Importantly, if any changes have occurred since the filing of the H-1B petition with USCIS (including but not limited to new job title, salary decreases or changes in job responsibilities or work location), employers should immediately discuss such changes with qualified legal counsel. Additional posting notice obligations and/or amended H-1B filings may have been required with USCIS prior to such changes and appropriate remedies should be immediately discussed.

During the site visit, the employer should be prepared to answer questions and/or provide documentation related to the employer's business, the H-1B worker's date of hire, title, work location, salary information, present a copy of the H-1B worker's current payroll record, and provide confirmation that the company paid all H-1B related fees and costs. Similarly, the investigator may ask to speak privately with the H-1B worker. The H-1B worker may be asked to present photo identification to confirm the employee is the same individual referenced in the H-1B petition. The H-1B worker also should be prepared to answer questions and/or provide documentation related to their job title, educational background, job duties, salary, hours, work address and verbally confirm that the company paid all H-1B related fees and costs. The investigator may also take photographs of the employer's facilities and the H-1B worker's workspace.

Finally, employers should also use this time of increased awareness of H-1B obligations to carefully review the mandatory H-1B Public Inspection File that must be maintained for each H-1B worker. While these files are mandated by the DOL, it is possible that USCIS site investigators could ask to review each file. There are numerous documents that must be maintained within the Public Inspection File pertaining to the precise terms and conditions of the H-1B employment.

If you have any questions regarding the USCIS site visits or your company's obligations regarding employment of H-1B workers, please contact Jenifer Brown or Christl Glier or any other member of the immigration group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.