American Workers First: Government Agencies Targeting at H-1B Program Fraud and Abuse

By: Lihua Tan

On April 3, 2017, the first day USCIS (U.S. Citizenship and Immigration Services) accepting FY2018 H-1B CAP filings, two government agencies, the USCIS and DOJ (Department of Justice) announced that they will target at H-1B visa fraud and abuse to protect US workers from being discriminated.

In fact, for the USCIS, since 2009, it has conducted random administrative site visits to H-1B employers to ensure that employers and foreign H-1B workers are complying with requirements of the H-1B nonimmigrant classification. It also referred cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation. Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the DOL (Department of Labor) Wage and Hour Division or by completing ICE’s HIS Tip Form.

This time, the USCIS announced that beginning April 3, 2017, it will take extra multiple measures to further deter and detect H-1B visa fraud and abuse, including a more targeted approach when making site visits to H-1B petitions and the worksites of H-1B employers. It 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, the USCIS established an email address dedicated to receiving information about suspected H-1B fraud or abuse.

The DOJ also cautioned employers petitioning for H-1B visas not to discriminate against U.S. workers, warning that employers violate the Immigration and Nationality Act if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers. The division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act.

On April 4, 2017, the DOL (Department of Labor) joined the action by announcing that it plans to take actions in an effort to ensure that American workers are not discriminated against by the H-1B program. These include:

• Rigorously use all of its existing authority to initiate investigations of H1B program violators.

This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.

• Consider changes to the Labor Condition Application for future application cycles. The Labor

Condition Application, which is a required part of the H1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.

• 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.

It is uncommon that three government agencies released announcement together targeting at H-1B fraud and abuse to prevent discrimination against US workers.

Furthermore, on April 18, 2017, President Donald Trump issued an Executive Order on “Buy American and Hire American” stating that the government will ensure the Integrity of the Immigration System to "Hire American.": “it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.” To advance the policy, he ordered the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse. These agencies also shall, “as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Though there are no immediate changes on H-1B program and the changes to be proposed may require legislative action, there is no doubt that there will be more audits, onsite visits, investigation on H-1B program in the coming months or coming years. All H-1B employers, especially start-ups, H-1B dependent employers, IT service companies, should comply with current immigration law and may want to start internal audit on LCA, I-9 and other immigration compliance. Please feel free to reach our office for further details.