The Enforcement Focus on Visa Fraud
The federal government’s increased scrutiny of employers for immigration-related violations does not stop at the employment verification process. DHS, DOS and DOL have also ramped up efforts to investigate visa fraud.
Visa Fraud by Improper Use of the H1-B Visa
Because the number of petitions filed with USCIS each year for H-1B visas far exceeds the limited number of those available, the H-1B visa has become quite valuable both to the alien worker and to many employers. With increased value comes increased fraud, followed closely by increased enforcement.
An H-1B visa permits a qualified alien worker to work temporarily in the U.S. in a specialty occupation. However, the H-1B visa also carries with it stringent requirements, including certain educational and professional requirements for the worker and certain obligations regarding the type of work and wage offered by the employer. Employers can run afoul of these stringent requirements by taking actions that many employers may not understand are wrong – for example, sending H-1B employees to unauthorized work sites or assigning responsibilities to the H-1B worker that fall outside the visa’s approved scope.
DHS and DOL have increased unannounced site inspections of employers of H-1B workers, seeking to verify the working conditions and specifications stated in the visa petitions. Inspectors usually speak to company officials and the H-1B visa worker, as well as review relevant documents. Employers must ensure that their statements in a visa petition accurately reflect the details of the position and the qualifications of the foreign worker who fills that position.
Penalties for improper visa use can include criminal ramifications, payment of back wages, loss of the ability to sponsor future workers and significant civil monetary penalties. For example, the DOL Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation.
Visa Fraud by Improper Circumvention of the H-1B Visa
Recent enforcement efforts have also focused on attempts to circumvent the stringent H-1B visa requirements and cap by improperly substituting other less expensive and more readily available visa options. In particular, some employers have attempted to use the B-1 visa, which is only available for business-related travel to the U.S. – not for working here.
India’s three largest IT firms (Infosys Technologies Limited, Larsen & Toubro InfoTech, and Tata Consultancy Services) have recently come under scrutiny for alleged visa fraud. At least one of these companies (Infosys) is facing criminal investigations by the DHS and DOS, and a DHS Form I-9 audit for which it has acknowledged that “DHS has found errors in a significant percentage of [their] Forms I-9.”
In light of the increased enforcement directed at H-1B employers and because of the unique and often extensive requirements of each visa category, employers should consult with experienced immigration counsel when petitioning for business-related immigration visas. In addition, employers should review their immigration compliance program for visa compliance safeguards. Some important questions to ask include:
- How does the company determine when and how it will sponsor employees for work authorization?
- Who is responsible for determining the appropriate visa to use for those employees?
- Is the company using the right visa for the employees it has chosen to sponsor?
- Once a visa is obtained, who monitors the sponsored employees’ work to ensure it complies with the visa petition?
- Have the responsibilities, pay or work location for any sponsored employees changed over time?