H-1B Anti-Fraud Program

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Government visits to H-1B and L-1 workplaces continue in the hybrid/remote work era

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In prior blog posts we have drawn attention to U.S. Citizenship & Immigration Services (USCIS) making unannounced site visits to workplaces where H-1B or L-1 workers are employed and other measures the agency uses to detect H-1B fraud. Officers make such visits to gather information about employers’ compliance with the H-1B and L-1 programs. Employers agree to site visits when signing Form I-129, “Petition for Nonimmigrant Worker,” which states that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.” That said, site visits are voluntary, and it is a best practice for clients to discuss with their immigration attorney whether they should participate in such visits.

USCIS information about site visits can be found on its website. It is important to note that, in this era of remote and hybrid work, government officers do not consider themselves limited to visiting employer premises (or the office of their client if the beneficiary is assigned to one): they may also visit H-1B or L-1 workers at their home offices. Indeed, immigration attorneys and their clients have reported such visits taking place.

Site visits are usually conducted without notice, complete in less than an hour, and consist of up to three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the petition. The inspector may ask for documentation to compare with the information in the visa petition and may wish to address any inconsistencies discovered.

A visit to a home office may necessarily differ from a visit to the employer’s premises, but the following response is suggested as a best practice in all cases. First, in the event of a site visit, employers and/or employees should request the name, title, and contact information of the site investigator, and contact their immigration attorney immediately. Though most visits are unannounced and USCIS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit and might be permitted to participate via phone. If counsel cannot attend, the employer should write a detailed description of what happened to be shared with counsel afterwards. It is advised that employers and employees not speak with government agents or contractors without a witness present.

Employers should also be aware of state requirements related to immigration worksite enforcement. A place to start, and for past information on California state requirements, is our blog post here.

© Jewell Stewart & Pratt PC 2024

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New California Employers’ Requirements under AB 450: Immigration Worksite Enforcement Actions

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California Assembly Bill No. 450 (AB 450) regarding California employers’ obligations when subject to federal immigration worksite enforcement actions was signed by Governor Brown on October 5, 2017, and took effect on January 1, 2018.  As part of a group of immigration-related bills recently signed into law, AB 450 is hailed by advocates as solidifying California’s status as a Sanctuary State.  The law introduces several requirements applicable to public and private employers in California.  How the California Labor Commissioner or California Attorney General will enforce the law is still an open question, given that federal law ordinarily preempts state law in the area of immigration, and because there is uncertainty surrounding which federal immigration enforcement agents must be refused entrance or documents under the new California law.  Below we detail a few of the new requirements for employers:

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USCIS announces new measures to detect H-1B visa fraud and abuse

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U.S. Citizenship and Immigration Services (USCIS) announced new measures to detect H-1B visa fraud and abuse. In addition to its usual random and unannounced site visits, USCIS says that it will now make targeted site visits to:

  • Employers whose basic business information cannot be validated through commercially available data.
  • H-1B-dependent employers -- i.e. those with a high ratio of H-1B workers to U.S. workers, as defined by statute.
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

USCIS also announced that it had established an email address that will allow individuals to submit "tips, alleged violations and other relevant information about potential H-1B fraud and abuse."

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VIBE – the USCIS’s New Information Verification System

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When adjudicating employment-based immigration petitions, the USCIS is required to verify certain basic information about the petitioner, to make sure that the company or organization is a bona fide U.S. employer.  For these verifications, the USCIS relies on paper documentation submitted with the petitions, and issues Requests for Evidence (RFEs) to employers when the documentation initially submitted doesn’t fully provide the necessary information. 

Unannounced Site Visits to Workplaces Where H-1B Workers Are Employed

Background:  The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS), a unit created in 2004 to combat immigration benefit fraud, recently commenced an assessment of the H-1B program. FDNS previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 visa programs. Now, it is turning its attention to H-1Bs.  The following is information that employers should know about FDNS and FDNS’ current H-1B assessment program.