for the past few months, the u. S. Department of homeland security, citizenship and immigration services (”cis”) has conducted an investigation program purposed at visiting h-1b petitioner worksites all-round the u. S. These internet-site visits started out as allocation of the cis’ goal to reduce the number of h-1b violations and instances of fraud reported by the h-1b benefit fraud & compliance assessment from cis’ office of fraud detection and national security (”fdns”), published this past september. As stated by the fdns’ determinations, as a great deal of as one in five h-1b applications were affected by either fraud or “technical violations” of the h-1b program.
why will have to employers care? Any employer who sponsored a foreign national worker for an h-1b visa can be subject to an unannounced internet-site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the h-1b petition, interview the individual who represented the establishment in connection with the h-1b as well as the h-1b employee or other workers currently on internet-site. Any inconsistencies found can mean huge trouble for employers.
fdns has expressed that it does not does unquestionably require a subpoena in order to complete the internet-site visit because uscis regulatings governing the filing of immigration petitions concede the government to take testimony and conduct broad investigations relating to the petitions. Notwithstanding other sources say that employers are not anticipated to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. Cis has expressed that attorneys can be present for the duration of an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys can be present via telephone in these circumstances.
some mutual questions that have been raised by employers include: “how are companies chosen to be investigated,” “if i am visited, will have to i be concerned,” “what type of violations are the investigators on the lookout for,” and “how can i prepare for a internet-site visit from a cis/fdns investigator? ” to address these issues in order, first of all any employer who has filed an h-1b petition can be subject to a internet-site visit. While cis claims the employers are chosen at random, close to 40,000 employers’ names have been chosen for internet-site visits. A great deal of elements that can have been taken into considerateness when selecting these 40,000 employers include: companies with fewer than 15 workers; companies with fewer than $10 million in sales; companies fewer than 10 years old; accounting, hr, business analyst, sales and advertizing positions; and petitions where the beneficiary simply had a bachelor’s degree, not an advanced degree.
if your company is visited and your records are in order, you have nothing to worry with regards to. Generally speaking employers are aware of inconsistencies before any investigative agency can catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case can be denoted to u. S. Immigration and customs enforcement (ice), or the department of labor (dol) for farther investigation contingent upon the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.
the objective of the unannounced on-internet-site visits is clear: to observe fraud and abuses of the visa program. As stated by uscis, the offenses range from technical violations to straight-out fraud, with the most mutual violation being the non- payment of a prevailing wage to the h-1b beneficiary. More quintessentially, the investigators can be on the lookout for the next types of violations: job emplacement not listed on the h-1b petition and/or lca; h-1b worker not receiving the required wage; fraudulent h-1b documents or h-1b worker credentials; non-existing business or office emplacement; job duties significantly not similar to those listed on h-1b petition/lca; misrepresentation of h-1b status by the h-1b worker (e. G. , had been terminated from previous h-1b position prior to new employer h-1b being filed); and h-1b worker salaried the $1500 acwia fee.
how can you prepare yourself and your company for a possible internet-site visit? Step one is to see to it that you have public access files (paf) for every h-1b worker, and that the paf documents are precise and up to date. Generally, it is a good idea to review and audit your h-1b/lca records to see to it everything is in order and all data is readily available. Designate a particular individual at every h-1b worker emplacement to meet the investigator will have to he/she arrive. Prepare a quick list of facts with regards to the establishment and likewise a listing of h-1b workers, work locations, title and salary data so you don’t require to search frantically for this data while the investigator is there. If you are not certain what a paf is, or if you’d like to have your documents reviewed by legal advice, you can contact our office at the number or e-mail under.
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