USCIS to conduct 25,000 on-site H-1B inspections

The USCIS is planning to conduct 25,000 on-site inspections of companies who hire H-1B workers. The plan was confirmed last month in a letter by USCIS Director Alejandro Mayorkas to Sen. Charles Grassley. According to the letter, a site visit and verification program had already began in July to check on the validity of H-1B applications. The goal of these on-site visits is to ascertain "whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described,
and paid the salary as identified in the petition."

On December 21, 2009, the USCIS announced that the annual H-1B quota of 65,000 has all been used up for FY2010. The additional 20,000 advanced degree visa caphas also been reached. There has been speculation that the increased on-site investigation was prompted by the revival of H-1B visa usage. Although this explanation is plausible, fraud investigation has actually been going on for some time. For each new H-1B petition filed, the petitioning employer must also pay a $500 fraud prevention and detection fee. This fee has been collected to establish and support a unit called Fraud Detection and National Security (FDNS) within the USCIS. This unit, working with some other government agencies including the Labor Department and U.S. Attorney's office, has been instrumental in enforcing the H-1B and related regulations.

Significantly, the number of targeted inspections announced is quite high, representing approximately five times the number of fiscal year 2009. Some cases are selected for inspection because of suspected fraud; others are selected randomly for audit. H-1B employers ought to review their H-1B public files for H-1B workers to make sure that they are fully in compliance with the regulations. They must keep all the required documentation in the file including the H-1B petition, the labor condition application, wage memos, payroll records, and other required documents. Employers must also pay the H-1B employees the salaries that they promised in the H-1B petition and be able to document it. The working hours and conditions must also be consistent with the H-1B petition and do not adversely affect the U.S. workers. One common technical violation is the location of employment. Many of the H-1B petitions were filed for IT consultants. The nature of the consulting business often requires the workers to work at different locations. Employers must make sure that the actual work locations match those provided in the H-1B petition. If not, they should file an amended labor condition application and / or H-1B petition as soon as possible.

Additionally, in November 2009, the U.S. Immigration and Customs Enforcement (ICE) also announced that ICE issued 1,000 notices of inspection (NOIs) to employers associated with critical infrastructure for knowingly hiring of undocumented workers and improperly completing the I-9 form.

These on-site audits and inspections are not trivial matters. The penalties for violations include back pay, fines, and other civil liabilities. If fraud and other more serious illegal acts are discovered, the employers could also face criminal prosecution. Consequently, employers are strongly advised to take this matter very seriously and act accordingly. When in doubt, they should seek advice from competent immigration attorneys to ensure legal compliance.