A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Wednesday, October 30, 2019

H-1B Visa Fraud and "Benching"

It is important to be truthful in any immigration visa or petition. Lying to gain immigration benefits is a serious crime and has severe consequences. The much-sought H-1B specialty occupation visa, filed by companies petitioning for foreign workers, has particularly strict requirements.

This is especially so for companies, mostly IT consulting firms, that assign employees to different projects at client sites. They must provide extra evidence in the form of an itinerary and various project documents. The project has to be real and ongoing and the sponsored employee must work on it and be paid. Failure to show this in a petition will result in denial. Attempts to defraud the system are heavily punished, as evidenced by the recent sentencing of a CEO of two Washington IT companies.

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The Washington CEO was sentenced to 87 months in prison for crimes relating to an extensive H-1B visa fraud scheme. The companies would hire and sponsor employees to work on fake projects, then "bench" the employee with no pay or job until they could be assigned to actual clients. This tactic was dubbed "bench-and-switch". The projects presented in the petitions were nonexistent and forged documents were provided as evidence.  Homeland Security Investigations, the Diplomatic Security Service, and IRS-Criminal Investigation investigated the IT companies. It was found that over 250 foreign workers were granted employment visas and brought into the country this way.

These companies were clearly trying to defraud the immigration system. Companies petitioning for foreign workers should ensure they follow the rules and requirements of the H-1B visa program. The Trump Administration has been particularly harsh in reviewing H-1B petitions.  Note that "benching" sponsored employees is illegal. The employee must work on the project their visa was approved for.  

If you are a petitioner and unsure whether you are correctly following H-1B regulations, it is recommended that you seek professional legal advice to avoid legal liabilities. 

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