The H-1B Visa program is designed to allow U.S. companies to recruit and employ highly-skilled foreigners. However, some think that too many qualified and willing U.S. citizens are looked over by employers, who instead, seek to employ foreign nationals. Some say these employers are abusing the program and are having a negative impact on U.S workers by decreasing wages and their opportunities for employment.
In order to combat the suspected fraud and abuse, President Trump issued the Buy American and Hire American Executive Order on April 18, 2017. Through rigorous enforcement and administering of the U.S. immigration laws, this Executive Order seeks to protect the economic interests of U.S. workers by creating higher wages and raising employment rates. By these same means, this Executive Order also seeks to ensure that only the most skilled or highest paid beneficiaries will be awarded H-1B Visas.
In order to implement the Buy American Hire American Executive Order, the United States Citizenship and Immigration Services, a division under the Department of Homeland Security, has been working on a combination of policy memoranda, rulemaking, and operational changes. USCIS has taken a stance on detecting and preventing immigration fraud and abuse by, first, providing easy ways for the public to report the suspected fraud, then, by enhancing information sharing across various Departments, and lastly, by enhancing the current site visit program.
The easy way USCIS has provided the public to report suspected fraud and abuse of the H-1B program is by email. ReportH1BAbuse@uscis.dhs.gov was established by USCIS to be an email address specifically for receiving information about alleged H-1B fraud or abuse. The email is set up so that anyone can send in an email with tips or other relevant information regarding suspected H-1B abuse or fraud. Both American workers and H-1B workers alike, along with anyone else, can send in an email if they believe they may be a victim of H-1B fraud or abuse. When sending in an email, USCIS requests that the following information is included:
- The name of the H-1B petitioning employer
- The address, including city & state, of the employer or location of the H-1B worker
- A description of the suspected violation, abuse, or fraud
- Email address of the person who’s emailing in
- Any other information that could be useful to investigate
- Name and number (optional)
Some instances that can be indicators of H-1B fraud and abuse are, if the H-1B worker is not being paid the wage that was agreed on, if there is a wage disparity between an H-1B and American worker, especially if the American worker is getting paid less, if the H-1B worker is not performing the job duties that were agreed upon, if an H-1B worker has less experience than an American worker in the same/similar position at the same company, or if the H-1B worker is not working at the location agreed upon. This is not a full list of what can be considered fraud or abuse, but it sets the tone of what to be on the lookout for.
Along with providing ways for the public to report suspected H-1B abuse or fraud, USCIS is also enhancing the information sharing process with other departments. Those departments include the Department of State, Department of Labor, and Department of Justice. On top of submitting an email to USCIS, USCIS also suggests submitting a WH-4 form with the Department of Labor’s Wage and Hour Division and/or a HIS Tip Form with the U.S Immigration and Customs Enforcement. USCIS’ most recent enhanced sharing practice is with the Department of Justice. On May 11, 2018, USCIS and the DOJ announced a Memorandum of Understanding which expanded their existing partnership by improving the way the agencies share relevant information, work together on cases, and train investigators. These improvements are done in an effort to better detect and eliminate abuse, fraud, and discrimination by employers. Tips, specifically relating to qualified U.S. workers being discriminated against by employers in favor of employment-based visa workers, that the USCIS receives through its’ dedicated email will be shared with the DOJ to help with investigations. In return, the DOJ will share employer information that may allow USCIS to potentially identify violations of statutes and regulations governing employment-based immigrant and non-immigrant visa programs.
Enhancement of the site visit program also comes with USCIS’s attempts to better detect fraud and abuse. The current site visit program is in place as an additional way to verify information given in certain visa petition, including H-1B. The enhancements are more focused on H-1B dependent employers, cases where the employer’s basic business information cannot be verified and when employers are petitioning for their H-1B workers to work at off-site at a third party location with another company. The petitioning companies used to be randomly selected, but with the enhancements, targeted site visits may become the new normal. Unannounced visits by Fraud Detection and National Security officers on Petitioner’s worksites seek to determine if various facets of the petition are true. For example, the officers verify documents that were submitted with the petition, that the petitioning entity actually exists, take pictures, interview personnel, and may even ask to speak directly with the Beneficiary. These observations are then recorded and reviewed to determine if requirements are being met. If further investigation is needed, USCIS may refer the company to ICE. Compliance with the requirements set forth is to help prevent U.S. workers from being displaced by foreign workers, a significant issue addressed in the Buy American Hire American Executive Order.
So what happens if fraud or abuse is detected? The Departments have begun to prioritize and publicize the investigation and prosecution of entities suspected of H-1B fraud or abuse. The collaborative efforts between the various Departments have led to convictions of employers, and more. The tips received from the multiple hotlines, targeted site visits, and other sources are investigated and reported to the proper Department for further investigation if necessary. With these new measures in place, fraud and abuse of visa programs, especially H-1B, is being detected and dealt with, and reform is being suggested, in pursuance of the Buy American Hire American Executive Order issued by President Trump.
By Rahul Reddy
Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries.