USCIS Announces Increase in H-1B Site Visits
USCIS Announces Initiative to Increase H-1B Site Visits and Additional Measures to Detect Abuse of the Program
Today U.S. Citizenship and Immigration Services (USCIS) announced it will be taking additional measures to detect H-1B visa fraud and abuse. As noted in the Press Release, USCIS will target three types of employers for site visits:
– Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
– H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
– Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
LAC’s Answers to Frequently Asked Questions about the H-1B Program
1. What is VIBE?
To validate an employer’s basic business information, USCIS currently uses a program called VIBE (Validation Instrument for Business Enterprises), which relies almost completely on information from Dun & Bradstreet (D&B). It is worth noting that many valid businesses are not registered with D&B, including well-known and public companies. Also important to note is that USCIS’ current process with most employment-based filings already includes a VIBE check. If a company does not clear VIBE, USCIS will issue a Request for Additional Evidence asking the employer for proof that they exist and are actively doing business. Therefore, in theory an H-1B should not be approved in the first place if USCIS could not confirm the employer’s validity via VIBE.
2. What does “H-1B dependent” mean?
An employer with 25 or fewer full-time employees in the U.S. is considered to be H-1B dependent if it employs 8 or more individuals in H-1B status; employers with 25 – 50 FTEs in the U.S. are considered dependent if they employ 13 or more individuals in H-1B status; employers with 51 or more FTEs in the U.S. are dependent if 15% or more of their workforce is employed in H-1B status.
On every Labor Condition Application filed with the DOL in support of an H-1B, and on every I-129 Petition for an H-1B nonimmigrant worker, the employer must disclose and attest to the number of individuals it employs in H-1B status, and affirm its compliance with each component of the H-1B regulations.
Reminder: For the above reason, and because of actions the employer must take upon termination of an H-1B employee, it is important for employers to keep any and all counsel working with them apprised of the total number of H-1B employees currently employed, and advise counsel immediately, or in advance if possible, of the termination of an H-1B employee.
3. What are the consequences if an employer is H-1B dependent, or if an employer has been found to be a willful violator of H-1B regulations?
Under existing law, employers which are H-1B dependent or found to be willful violators are required to follow DOL guidelines to recruit for U.S. workers who are equally or better qualified than the foreign national. H-1B dependent employers must also take affirmative actions to show that they have not displaced U.S. workers either at their place of employment, or on the site of a third party. Under existing law, employers are exempt from these additional requirements if they are filing an H-1B for an employee if the employee who will receive annual base pay of at least $60,000 or if the employee holds a master’s degree or higher in a field related to the employment.
4. What other requirements does the current H-1B law mandate?
Under current law, the employer must:
a. Pay the H-1B worker at least the local prevailing wage (as certified by the DOL) or the employer’s actual wage for the position, whichever is higher.
b. Pay the employee for non-productive time, so the employee is not brought to the U.S. and “benched” between assignments.
c. Offer the employee the same benefits it offers U.S. workers.
d. Provide working conditions that will not adversely affect the working conditions of similarly-employed U.S. workers.
e. Affirm that there is no strike, lockout, or work stoppage in the named occupation at the site where the H-1B worker will be employed.
f. Provide notice to the union, or to workers in the occupation at the place of employment, of the prospective hiring of an H-1B employee.
g. Notify USCIS when an H-1B employee terminates employment, regardless of whether the employee or employer terminates the employment.
h. Offer the employee the cost of return transportation to their country of last permanent residence, if the employee is terminated by the employer.
5. What does it cost an employer to file an H-1B?
Every employer must pay various fees to USCIS with each H-1B petition it files.
Under existing law, for any H-1B filing an employer must pay a $460 base filing fee + a $500 fee earmarked for fraud prevention + a $1500 fee earmarked for scholarship and training of U.S. workers (or $750 for employers with fewer than 26 employees).
Petitioners who employ 50 or more individuals in the U.S., of whom 50% or more are employed in H-1B, L-1A or L-1B status, pay an additional filing fee of $4000 per petition.
By regulation, the H-1B employee may not pay any fee, legal or filing, related to the H-1B process.
6. Are there penalties for violation of the H-1B program?
Yes. H-1B violations pertaining to a strike/ lockout or displacement of U.S. workers; lack of notification or misrepresentations on labor condition applications; filing fees paid by employee – carry a civil monetary penalty of up to $1,782 per violation.
H-1B violations pertaining to willful failure related to wages/ working conditions, notification, labor condition application specificity, recruitment; or discrimination against an employee – carry a civil monetary penalty of up to $7,251 per violation.
H-1B willful violation, where an employer displaced a U.S. worker between 90 days before and 90 days after the filing of an H-1B petition, or willful misrepresentation of a material fact on the labor condition application – carry a civil monetary penalty of $50,758 per violation.
Other penalties include debarment from use of the H-1B program, and in cases where there are willful violations, criminal prosecution of the employer.
7. Is there any new legislation related to H-1Bs?
In January 2017, Congressman Darrell Issa (R – Calif.), joined by Congressman Scott Peters (D – Calif.), introduced H.R. 170, the “Protect and Grow American Jobs Act,” . The bill would raise the minimum salary for exemption of the recruitment requirement (not the base qualification for an H-1B) to $100,000, and eliminate the Master’s degree exemption altogether.
On March 2, 2017 Reps. Bill Pascrell Jr., D-N.J., Dave Brat, R-Va., Ro Khanna, D-Calif., and Paul Gosar, R-Ariz., introduced the “H-1B and L-1 Visa Reform Act of 2017.” The Representatives indicate the bill would overhaul the H-1B and L-1 visa programs and “get tough on companies that take high-skill jobs away from Americans by outsourcing to foreign workers.”
The bill would require employers to make a good faith effort to recruit and hire U.S. workers before hiring foreign workers; prohibit employers from replacing U.S. workers with H-1B or L-1 workers; modify existing H-1B wage requirements; establish wage requirements for L-1 workers; prohibit employers from outsourcing H-1B and L-1 visa holders to other sites unless the employer obtains a waiver; and grant the U.S. departments of Labor and Homeland Security more authority to investigate fraud and abuse in the two visa programs.
The legislation would also prohibit companies from hiring H-1B workers if the companies employ more than 50 people and if more than 50 percent of the employees are H-1B or L-1 visa holders; would create a new H-1B visa allocation system that prioritizes workers who have earned advanced degrees in science, technology, engineering or mathematics from U.S. schools; would raise penalties on those who violate the law; and would provide visa holders with a list of rights to protect them against mistreatment or underpayment of wages.
In addition to the above, a draft presidential executive order leaked to the press in January mandated review of most employment-authorizing visas. The January 23, 2017 draft executive order, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” calls for a review of several employment-based visas, the termination of parole programs, the expansion of site visits, and the publication of the “devastating impacts” that the employment of foreign-born individuals has had on the wages and job of U.S. workers. With respect to the H-1B program, it calls for reform such that the program would be limited to the “best and the brightest.” However, unlike the “travel ban” and executive orders related to interior enforcement and the border wall — in which cases draft versions were leaked, and were then executed and issued almost verbatim a few days later – an executive order related to employment-based immigration has not been issued yet. It does appear, however, that some elements of the order are being implemented in other ways. For example, the above USCIS press release announcing increased site visits, and the reasons for them, tracks the tone and concerns outlined in the draft executive order.
8. There seems to be conflicting information about the impact of the H-1B Visa Program. Where can I get more information?
One source is a Fact Sheet published by the American Immigration Council — “The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages and the Economy,”