On March 31 2011 US Citizenship and Immigration Services (USCIS) Associate Director for Service Centre Operations Donald Neufeld testified before a Congressional committee that H-1B employers are coming under increasingly intensive federal scrutiny. Non-immigrant employers are deemed to be potential criminal and security threats, and are subject to increasingly elaborate investigations.

Federal investigators subject companies that sponsor H-1B workers to background checks that rival the sort of intrusive probing that occurs when an individual applies for federal employment or for security clearance to work on classified programmes.

Neufeld stated that the Department of Homeland Security, which runs most immigration programmes, treats business programmes as potential conduits for felony, fraud and other serious criminal activities. He testified that the department has:

"found that the U.S. legal immigration system was being abused and potentially used to threaten national security and public safety and contribute to other illegal activities, such as human and narcotics trafficking."

In the same prepared remarks, Neufeld revealed that USCIS finds that approximately one in eight H-1B petitioners is sufficiently suspicious to warrant more intensive follow-up after site inspections. All non-immigrant petitions submitted are screened and profiled for indicators of fraud or non-compliance by Benefit Fraud Compliance and Assessment. These indicators – which have not been entirely revealed to the public – guide unannounced inspections of company plants and offices under the Administrative Site Visit and Verification Programme. Neufeld testified:

"Currently, [Fraud Detection and National Security] conducts unannounced post-adjudication site visits to verify information contained in randomly-selected H-1B visa petitions. Using [Benefit Fraud Compliance and Assessment] findings and indicators as a guide, USCIS developed a standard series of questions that inspectors ask when conducting a site visit. Possible actions taken when inspectors are unable to verify or validate information provided include further review by an adjudicator and potential issuance of a Notice of Intent to Revoke, or referral to [a Fraud Detection and National Security] field office for further investigation."

Audits of employment and workplace sites have become increasingly common for companies filing H-1B and other non-immigrant petitions, such as L-1 intra-company transfers. The chances that filing a petition will lead to a workplace inspection by Fraud Detection and National Security branch inspectors are increasing:

"In Fiscal Year 2010, USCIS conducted 14,433 H-1B [Administrative Site Visit and Verification Programme] site inspections. Of those petitions subject to an ASVVP inspection, 14 percent were "not verified," resulting in referrals to adjudicators or [Fraud Detection and National Security] for further inquiries. Of those petitions that were "not verified," 11 percent were reviewed by adjudicators and reaffirmed with an approval, and 46 percent were referred to [Fraud Detection and National Security] for further fraud inquiries or revoked by adjudicators. The remaining "not verified" cases are still pending review by adjudicators or [ Fraud Detection and National Security]."

Furthermore, according to the statement, USCIS is preparing to issue a new report on alleged H-1B fraud. The agency is likely to find that while the results of these investigations may indicate some drop, fraud and non-compliance in the H-1B programme are still widespread. Neufeld observed:

"As compared to the nearly 21 percent fraud and noncompliance rate in 2008, the 14 percent "not verified" rate suggests a reduced level of fraud in the H-1B program. As it continues to analyze [Administrative Site Visit and Verification Programme] results and resolve those cases that have not been reaffirmed or revoked, USCIS expects to determine a current fraud rate in the program."

Most of these measures have been reported previously. However, many companies may not be aware that part of the Fraud Detection and National Security investigations process is the checking of company information received on forms and in applications against public databases, including commercial reporting services, and even social networking websites such as Facebook.

Specifically, USCIS has adopted the Validation Instrument for Business Enterprises (VIBE), a new online tool that aggregates commercially available data. At present, VIBE is reportedly undergoing beta testing.

In addition to H-1B filings, VIBE will also be deployed to check information received on employment-based petitions filed on Forms I-129 and I-140. The system collects data such as type of business, trade payment and credit information, business activity or inactivity, reported sales volume and listed workforce (both in the United States and globally). The system will also find information on global affiliates, ownership and legal status (eg, limited liability company, partnership or corporation), company executives, the date of establishment and indicators and physical addresses. To do this, VIBE reportedly accesses Dun and Bradstreet's databases, but may actually aggregate a multitude of online data sources and databases accessed by the Department of Homeland Security.

Therefore, companies that use business employment and their corporate counsel should expect little or no let-up in the scrutiny that follows the filing of H-1B visa petitions.

For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900) or by fax (+1 248 643 4907) or by email ([email protected]).