How to Deal with H-1B Anti-Fraud Inspections from USCIS
The H-1B Visa and the Quota System
H-1B is a visa category reserved for U.S. employers who want to temporarily bring over foreign employees. The purpose of the H-1B visa is to enlist the specialty services of an alien worker.
Each year, H-1B visas are subject to a quota system. In early 2000, the quota for H-1B was set high, in several years reaching 195,000. During these years, the quota was either barely filled or not completely filled at all. Since then, USCIS has gradually decreased this number to 65,000 plus an additional 20,000 for advanced degree holders. By doing so, this has caused H-1B visas to fill up very quickly, sometimes in a matter of a few days. Out of this pool, up to 6,800 visas can be allotted to foreign nationals under the U.S. Chile/Singapore Free Trade Agreement. Any unused numbers will then be reallocated back to the general cap the next fiscal year.
On November 18, 2009, USCIS reported that they have already filled 55,600 spots as of November 13, 2009. In addition, they also reported that the 20,000 spots for advanced degree holders have also been filled. Even though the cap for advanced degree holders has been filled, this does not exclude prospective applicants who have not yet submitted an application. All advanced degree holders approved under an H-1B visa will now be counted towards the general quota. Bear in mind, if you receive a job offer from a higher educational institute such as a university or from a non-profit organization, your petition will not be subject to the yearly quota. To follow H1-B quota status, please click on the following link.
Background on H-1B Fraud Crackdown
Unfortunately, H-1B fraud occurs from time to time. Under section 26 of the 2004 H-1B reform law, a $500 fraud fee was added to each application to help fund random visits by USCIS. Funded by these fees, the USCIS Fraud Detection and National Security (FDNS) Unit conducted inspections under a less formalized program. This decree was a direct result of a compliance report released by USCIS in September 2008 in which they sampled 246 H1-B cases. Of which, 13.4% were found to be fraudulent. To view the report in its entirety, please click here.
Lately, USCIS has increased its repertoire of visits under the Administrative Site Visit and Verification Program (ASVVP), launched earlier this year. Usually, they conduct visits entirely at random and not under the pretense that you or your company are in direct violation. All companies that have H-1B employees on staff, particularly mid-level companies that do not have an established record of H-1B compliance should definitely be aware of these visits.
What Happens if you Receive a Visit from USCIS?
In order to help you prepare for a visit from USCIS, we have compiled the following tips for both employers and employees.
For the Employer
- Your company should make sure that you have all of your personnel records organized and up-to-date to ensure that they are easily accessible when prompted to retrieve them.
- Designate a representative to speak on behalf of your company. More than likely, USCIS will ask to speak to someone in human resources. Be sure that this person has knowledge of the H-1B visa holders in your company. USCIS will probably interview this person, so also make sure they are able to answer accordingly. If they cannot answer a question, they can ask USCIS for more time to compile the appropriate documentation or to consult an attorney.
- Let someone at the front desk know that these visits can occur. That way, when USCIS shows up, they will be able to notify the appropriate person or people.
- Please try to comply with USCIS’ requests. Not complying could potentially affect your company’s current/future visa benefits.
- To avoid any potential problems, be sure to follow up on compliance issues. It is ultimately your responsibility to use E-verify and any other methods to determine employment eligibility.
- Keep in mind that an ASVVP visit is not an LCA audit performed by U.S. Labor Department staff, nor is it an I-9 audit conducted by Immigration & Customs Enforcement officers. However, you should ensure that your LCA records and I-9 records are ready for review in case the FDNS examiner asks for these files.
For the Employee
- First and foremost, do not panic. These investigations are routine. In the event that you are interviewed by USCIS, try to answer the questions asked of you to the best of your knowledge.
- Be sure that you have updated records on file with your human resources department, as they may forget to ask (i.e. change of phone number, change of address, etc.).
- If you cannot answer a question or feel uncomfortable answering a question, you can ask the interviewer to defer the question until you have consulted an attorney or gathered the appropriate documentation.
What type of Questions will they Ask?
For the Employer
Most of the questions asked will be directed towards business functions and general information about H-1B employees. For instance, an officer may ask “what type of business does this company engage in?” or “how many H-1B employees are at this site?”. If prepared, all questions should be in the interviewee’s scope of knowledge regarding the company. In addition, USCIS officers may also inquire about past salary records of H-1B employees, and may ask to review them.
For the Employee
All questions will directly relate to an employee’s personal and work information. An ASVVP officer could ask “what is your home address?” or something along the lines of “what do you do for your current place of employment?” to questions about your spouse.
Final Thoughts
Both H-1B employers and employees should not be alarmed by these random visits. They are meant to protect American workers and uphold the standards of our labor system. At Zhang and Associates, P.C., we wholeheartedly believe in the “American dream”. We also acknowledge the fact that specific queue systems are in place to help make the process efficient and fair for everyone.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past thirteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, PC.
Houston ∙ New York ∙ Chicago ∙ Austin ∙ Los Angeles
| Tel： | 1-800-230-7040, 713-771-8433 |
| Email： | info@hooyou.com |
| website： | http://www.hooyou.com |
(11/23/2009)
