A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, April 4, 2017

USCIS to Beef Up H-1B Site Visits: Targeting Dependent Employers and Off-Site Employment

As USCIS is receipting hundreds of thousands of H-1B cap cases, the agency announces that it will undertake multiple measures to further counter H-1B visa fraud and abuse. These measures include a "more targeted approach" when conducting onsite visits of the locations of H-1B employment.  As we recently predicted, these measures are expected as part of the new administration's efforts to review all visa programs.  

It is important to note that site visits are nothing new.  In fact, they have been on-going for many years since the Obama Administration.  For example, according to a 2009 letter by USCIS Director Alejandro Mayorkas to Sen. Charles Grassley, USCIS was conducting 25,000 site visits to verify H-1B employment information such as salary, job location, existence of employment, etc.

According to USCIS, the new targeted approach will focus on (1) Employers whose information cannot be verified through commercial database, (2) H-1B dependent employers, and (3) off-site employment.

An employment is considered H-1B dependent if it has 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or  26 to 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or 51 or more full-time equivalent employees of whom 15 percent or more are H-1B  nonimmigrant workers.  H-1B dependent employers normally are required to have taken good faith efforts to recruit qualified U.S. workers before hiring an H-1B worker.

Off-site employment happens when an employer sends its H-1B employee to work at another business entity's job site.  Typically these are consulting firms that place their professional employees to work at other companies as consultants.  Under a 2010 USCIS policy memo, cases involving off-site employment must provide evidence to prove that there is a valid employer-employee relationship between the H-1B petitioner and employee before their H-1B petition can be approved.

According to USCIS, some qualified American workers have been ignored or unfairly disadvantaged under the current H-1B program. These measures are intended to combat fraud and to protect U.S. workers.   The agency has also created a designated email address through which any interested party may submit information regarding any potential H-1B fraud or violations.

Employers should be extra careful now with their H-1B petitions to make sure that they comply with the regulation. Further, since these on-site visits are unannounced, employers should also clearly advise and train their staff to properly receive any requests for site visits.  H-1B employers should also make sure that their public inspection folders are up to date with all required documentation such as the Labor Condition Application.  They should also be ready to provide H-1B employees' payroll documents upon request.  Failure to meet the requirements of these site visits could result in denial of petitions and other serious legal consequences.  

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