2009 – The Year of Immigration Compliance

Tighter government oversight over the H-1B visa program and permanent employment-based immigration expected.

On October 8, 2008, the U.S. Citizenship & Immigration Service (USCIS) released a report that 13% of all H-1B petitions filed on behalf of U.S. employers are fraudulent. The same report also stated that another 7% of those petitions contain some sort of technical violation. The report’s conclusion states: “Given the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document.”

Increased oversight of the H-1B program has already begun. The U.S. Department of Labor (DOL) is introducing the new iCert program in mid April. With the initiation of the iCert program, the DOL is tightening its review of applications for H-1B visas. Currently, when an employer applies for an H-1B petition, the employer is supposed to file a Labor Condition Application (LCA) with the DOL. By filing the LCA, the H-1B employer states to the DOL that the proffered wage for the proffered position meets or exceeds the prevailing wage for the given employment location. Moreover, when filing the LCA, the H-1B employer attests that the sponsored H-1B employee will not displace any similarly-situated US worker from equivalent jobs in the same geographic area of employment and that their H-1B employees will not displace US workers at other worksites. At the present time the LCA is filed online and is approved within seconds of submission. With the implementation of iCert, for the first time DOL staffers will manually process LCAs to ensure thorough scrutiny of the application, resulting in approval times of at least 5 to 7 business days.

Meanwhile, the USCIS is more actively investigating companies that sponsor H-1B visas for potential misuse. The aforementioned report released by USCIS on October 8, 2008 states that 80% of the fraud or technical violations highlighted in the report were discovered by the government during site visits. Fraudulent cases included instances where the H-1B visa beneficiary was not working for the sponsor or had never worked at the specified location on the LCA. Technical violations included circumstances where the worker was paid at or below the prevailing wage stated on the LCA. In other situations, the job duties performed by the beneficiary were significantly different from the position listed on the H-1B petition (i.e., the job duties misrepresented the skill set required or the job location was misrepresented). Over the past 18 months, the USCIS has instituted an ongoing coordinated, nationwide enforcement effort to ensure that H-1B sponsoring companies are not abusing the H-1B visa program. In fact, just last month in coordination with the U.S. Attorney’s office in Iowa, the USCIS was involved in a six-state raid of companies allegedly abusing the program that resulted in a 10 count federal indictment against New Jersey-based Vision Systems Group. Vision Systems Group allegedly used fraudulent documents to bring H-1B visa workers into the U.S. The firm was indicted on conspiracy and mail fraud charges and possibly faces a forfeiture of $7.4 million that was gained through the alleged offenses. What’s more, Vision Systems Group is accused of filing H-1B petitions with the USCIS that stated that the sponsored individuals would work in Iowa to take advantage of the lower prevailing wage rates, when in fact the sponsored workers were working on the East and West coasts where the prevailing wage rates are far higher. By law, H-1B sponsoring companies must pay H-1B employees a salary at least equivalent to the prevailing wage for the location the beneficiary is working in. Prosecutors stated that in addition to Vision Systems Group, five other technology companies remain under investigation for document fraud.

As the unemployment rate rises in the United States, the H-1B program is drawing scrutiny for its potential effects on U.S. jobs. It is imperative for companies utilizing the H-1B visa program to ensure that they are compliant with the H-1B regulations. As Mathew Whitaker, the U.S. Attorney prosecuting the Vision Systems Group case, stated “We are only at the tip of the iceberg as to where this [investigation] leads…We have a ways to go and more [fraud] to uncover.” Large corporations, such as Microsoft who are advocates of the H-1B program are already taking the lead in ensuring that they set themselves apart from firms that commit fraud by working in conjunction with the USCIS to make sure that the program is free of fraud and abuse.

In light of this heightened scrutiny of H-1B sponsors, it is important for H-1B employers to maintain compliance with all Immigration rules and regulations so that serious violations do not occur and business can continue as usual. With the H-1B visa program, it is extremely important that employers keep accurate and organized employee files. There are many different forms and documentation associated with the H-1B visa. Therefore, all employers should maintain public employee files that contain those essential documents. Those employee files can be very helpful in the case of an audit by the Department of Labor (DOL) which is becoming more of a common occurrence these days.
The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional.

A U.S. employer using the program must also guarantee that:

1. the foreign professional will not adversely affect the working conditions of U.S. workers;
2. U.S. colleagues will be given notice of the foreign professional’s presence among them;
3. there is no strike or lockout at the worksite; and
4. the position requires a professional in a specialty occupation and the intended employee has the required qualifications.

Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, an employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files.

An employer is required to have a public inspection file and the DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application.

Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.
Although H-1B audits are not that common, the H-1B program is currently undergoing scrutiny and in light of current events audits are going become more commonplace. Therefore, it is extremely important to maintain an organized H-1B audit/public access file, so you may expedite the audit and possibly save the company from any potential liability due to mingled or misplaced files. Moreover, it is important for employers to periodically have independent reviews of their audit files and systems to ensure that any measures needed to correct any errors in the audit files are made in a timely manner.

The backbone of a healthy corporate immigration policy is ensuring a company’s compliance with regulations designed to protect its U.S. workers and ensure that its workforce is made up of individuals lawfully authorized to work in the United States. If your business needs assistance with maintaining H-1B compliance, please contact MVP Law Group immediately! The MVP Law Group offers a complete range of compliance plan services for Employers involved in Business Immigration.