The US Citizenship & Immigration Service (USCIS) announced today that it will be taking a more “targeted approach” to its H-1B site visits. Since 2009, the USCIS has conducted random, unannounced site visits to worksites where H-1B workers are employed, asking questions to both the employer and H-1B employee about the employee’s duties, wages, and terms and conditions of employment, to ensure that the employee is employed as promised in the H-1B application. In its announcement today, the USCIS states its belief that American workers are “ignored and unfairly disadvantaged” by the H-1B program. To combat fraud in the H-1B program and protect US workers, the USCIS will be more stringent in its site visits, asking more probing questions and digging deeper into the working conditions of the employee and at the worksite. The USCIS states that it will be focusing on “H-1B dependent” employers (which are employers with a high ratio of H-1B employees as compared to US workers), and employers who place H-1B workers at client-sites (such as IT consultants and staffing agencies). However, given its objectives, all employers are subject to an increased likelihood of random, unannounced site visits. Further, the USCIS established an email address where anyone can submit tips, alleged violations and other compliance issues and relevant information to the USCIS. The US Department of Labor has a similar tip line as well. This will also likely increase H-1B enforcement actions by the government.
In light of this, employers are advised to proactively, self-audit their H-1B compliance. They should make sure that H-1B employees are working at the worksite identified in the H-1B paperwork submitted to the USCIS when applying for H-1B status, and should make sure that they are performing the duties identified in that paperwork. Employers should also check H-1B workers’ wages to ensure that they are paid properly, in terms of both amount and intervals. They should make sure that no H-1B employee is benched, meaning that they are not put in unpaid, non-working status while waiting for the next project to start, for example. Further, employers should make sure H-1B employees did not pay for any portion of the costs associated with obtaining H-1B status, including both legal fees and filing fees, and including any reimbursement agreements with the H-1B employee. In essence, employers should analyze their overall H-1B and immigration compliance.
If you have any questions about this e-alert, please contact Berin Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2017. Posternak Blankstein & Lund LLP. All rights reserved.
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