American Workers First: Heightened H-1B Visa Fraud and Abuse Detection Measures

Practice Areas

By: Dolores Co

In line with Pres. Trump’s Executive Order “Buy America, Hire American”, both the Unites States Citizenship and Immigration Services (USCIS) and Department of labor (DOL) earlier issued measures to detect H-1B visa fraud and abuse.

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification.

On April 3, 2017, USCIS announced multiple measures to “further deter and detect H-1B visa fraud and abuse”. USCIS will employ a more targeted approach when performing sites visits and across the country to H-1B petitioners and worksites of H-1B employees. The Service 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.

These targeted visits are intended to allow USCIS to focus resources where the fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers who normally must meet H-1B recruitment attestation requirements are paying their workers the statutorily required salary to qualify for an exemption from these requirements. It also aims to discover if employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide.

The DOL follows up and announced its own plan to protect U.S. workers from H-1B program discrimination through greater transparency and oversight. DOL promises to rigorously use its existing authority to: initiate investigations of H-1B program violators; consider changes to the Labor Condition Application for future application cycles; and continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.

Both USCIS and DOL have established respective email addresses to receive information about suspected H-1B fraud or abuse.

In view of this development, H-1B employers should:

  1. Keep an updated list of H-1B/L1 employees.
  2. Ensure PAFs are updated.
  3. Verify that company information is accurate on I-129 forms.
  4. Assign a point person in case of a USCIS/DOL Visit.
  5. Train front desk to properly direct USCIS/DOL agents to the right person for such matters.

Please contact our firm to ensure your PAFs and other records are in order.

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