USCIS Announces Increased H-1B Audits Under Trump Administration
On April 3, 2017, nearly 200,000 H-1B applications were filed by U.S. employers. That same day, U.S. Citizenship and Immigration Services (USCIS) announced it will increase site visits to ensure H-1B employers are complying with the regulations governing the program.
USCIS started the Administrative Site Visit and Verification Program in July 2009 as a way to verify information in certain employer-sponsored visa petitions. Under this program, Fraud Detection and National Security (FDNS) officers make unannounced visits to collect information as part of a compliance review. The program is fee funded; each initH-1B petition filed by an employer requires a $500 anti-fraud fee.
USCIS will continue random site visits but it will now also focus efforts on:
• Cases where USCIS cannot validate the employer’s basic business information through commercially available data (e.g., newly established or small businesses);
• H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers); and
• Employers petitioning for H-1B workers who work offsite at another company’s or organization’s location (e.g., consulting companies and IT staffing companies). Because these site visits are unannounced, employers should proactively prepare. H-1B employers should:
• Audit H-1B files to ensure the required paperwork is present and continues to accurately reflect the terms and conditions of employment;Prepare managers of H-1B workers for the questions USCIS is likely to ask during a site visit; and
• Prepare staff who will first encounter USCIS agents about the protocol to follow—who to call, what to say and what access should be provided.
What to Look for When Auditing H-1B Files:
• Is the H-1B employee still working for the company? If not, the employer needs to notify USCIS that the H-1B employee is no longer working for the employer. If the H-1B employee was terminated, the company may also be obligated to offer payment for return transportation.
• Is the H-1B employee still working for the company in the same role and at the same location described in the H-1B petition? If not, the company needs to determine if the changes require amendments to the H-1B petition. • Is the H-1B employee receiving the compensation listed in the H-1B petition? A change between part-time and full-time requires an amendment, and a change in compensation structure (e.g., movement from hourly to salary or guaranteed pay to bonus structure) can require an amendment as well.
The Scope of FDNS Officer Reviews
The FDNS officers will ask to speak to the H-1B employee as well as the company representative who signed the petition. They may also want to speak to the manager of the H-1B employee if the company representative is not the manager.
Managers, company representatives and the H-1B employee should be familiar with the company’s H-1B petition. The FDNS officers will request pay records to verify that the H-1B employee is being paid the wage offered in the H-1B petition.
USCIS advises that if the employer or H-1B employee expresses an unwillingness to participate, the site inspector will terminate the visit. The inspector will complete the report using the data available and indicate that the site visit was terminated at the request of the employer or H-1B employee. The compliance review will include a follow up with the employer and H-1B employee by phone, fax or email. The USCIS also may choose to issue a Notice of Intent to Revoke the H-1B status of the employee if it is unable to confirm compliance with the terms and conditions of employment as set forth in the H-1B petition. Employers are best served if they are prepared and cooperative on account of confidence in their compliance.
Relationship Between Employer and Third Party Work Site
Employers who place H-1B employees at customer/client sites should alert their customers and clients of the possibility of site visits. Companies that rely on placement companies and IT consulting companies to provide specialized knowledge employees should request the placement companies and IT consulting companies provide the information needed to participate in a site visit if a site visit is initiated at its facility as the work site.