U.S. Citizenship and Immigration Services (USCIS) recently issued the results of a study by its Office of Fraud Detection and National Security concerning the H-1B Specialty Worker nonimmigrant work visa program. USCIS conducted a statistically random sampling of pending and completed H-1B cases over a recent six-month period. USCIS' sample consisted of 246 cases drawn from a total of 96,827 cases filed between October 1, 2005 and March 31, 2006. USCIS found that a total of 51 cases out of the 246 represented either fraud, a technical violation, or more than one technical violation. The further breakdown was 33 cases involving fraud and 18 cases involving a technical violation or violations. The most common technical violations cited by the report were that the beneficiary was not working at location specified in the case, the employee was not being paid the required wage, or the employee had been "benched."

USCIS found that the fraud and technical violation profile was higher for smaller companies that had been in business for fewer than 10 years, had gross income of less than $10 Million and sponsored foreign nationals with bachelor's degrees (but not graduate degrees). USCIS also discovered that cases for beneficiaries in the accounting, human resources, business analyst, and sales and advertising occupations were more likely to contain fraud or technical violations than other occupations. USCIS intends to make procedural changes to more effectively target fraud and discover technical violations.

Our clients and friends should reinforce their focus on the following when preparing and filing H-1B petitions:

  • ensure that all representations in the petition and supporting documents are accurate and consistent with internal records;
  • ensure that pay records are maintained that prove payment of the required wage; and
  • notify us if the employee's work location will change -- before the location change takes place -- so that steps can be taken to ensure compliance with the Labor Condition Application (LCA) rules, which may include posting the LCA at the new facility, filing a new LCA, or filing an amended H-1B petition, depending on the circumstances and timing.

Employers should also refrain from providing employment confirmation letters to departed employees representing that they are an active employee when in fact they have completely stopped work and are receiving severance pay.