If You’ve Filed H-1B Visas for the Coming Year, Prepare Yourself for Serious Audit Inquiry
This past Monday was the first day of the 2018 fiscal year for H-1B visa filings. On the Friday before, as H-1B petitions were being put into the mail, the government announced that H-1B visas for computer programmers are going to be more highly scrutinized than other positions. Then on Tuesday, U.S. Citizenship and Immigration Services (“USCIS”) announced they will be prioritizing combating visa fraud and abuse in the coming year. These announcements are driven by the Trump administration’s policy to put “American Workers First.”
USCIS has highlighted five indicators of H-1B fraud or abuse that break from the straightforward audits of the past:
The H-1B worker is not or will not be paid the wage certified on the labor condition application (“LCA”).
There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
The H-1B worker has less experience than U.S. workers in similar positions in the same company.
The H-1B worker is not working in the intended location as certified on the LCA.
To assist with the detection of H-1B fraud and abuse, USCIS has developed three methods by which suspect action can be reported. First, it will provide a new email address for individuals who suspect H-1B fraud and abuse to report their information. Second, it has developed an “extraordinary circumstances” provision which allows individuals whose status has lapsed to file for H-1B status or to change their nonimmigrant status if they indicate they may face retaliatory action from their employer for reporting an LCA violation. And third, USCIS plans to expand site visits to target specific employers and worksites. Targeted employers will include those who have a high ratio of H-1B workers as compared to U.S. workers (typically 15 percent for large employers), those who place H-1B workers at third-party workplaces, and those whose business information cannot be easily validated through commercially available data.
HOW TO PREPARE FOR INQUIRY?
With the Trump administration’s clear mandate to protect U.S. workers, employers should anticipate aggressive inquiries in the coming year. Here are some tips for how to prepare:
Review your audit protocols and educate security/reception personnel regarding whom they should contact if an auditor shows up.
Review H-1B public access files to ensure you have maintained records required by the regulations.
Review your wage-setting, staffing, and performance management systems and be able to demonstrate they are consistently applied to all workers.
Let H-1B workers and their managers know that additional site audits might occur and advise them to collaborate and affirm their job duties, title, wage and location.
Reinforce escalation protocols for any internal complaints and review any external audit or complaint activity that may affect H-1B workers or the use of H-1B workers.
Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.