for the past few months, the u. S. Division of homeland security, citizenship and immigration services (”cis”) has conducted an investigation program targeted at visiting h-1b petitioner worksites all around the u. S. These web site visits started out as percentage of the cis’ goal to decrease 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 good deal of as one in five h-1b apps 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 web 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, consultation the person who represented the organisation in connection with the h-1b as well as the h-1b employee or other laborers currently on web site. Any inconsistencies found can mean big disturb for employers.
fdns has expressed that it doesn’t does unquestionably require a subpoena in order to complete the web site visit because uscis regulations governing the filing of immigration petitions allow the government to take testimony and conduct wide investigations relating to the petitions. Nevertheless other roots say that employers aren’t 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 during an inspection, but the investigator is not likely going to come back another day whether or not the attorney is not available on the day of the unscheduled visit. Attorneys can be present by way of telephone in these circumstances.
some mutual questions that have been raised by employers include: “how are companies selected 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 web site visit from a cis/fdns investigator? ” to address these issues in order, first and foremost any employer who has filed an h-1b petition can be subject to a web site visit. While cis claims the employers are selected at random, close to 40,000 employers’ names have been selected for web site visits. A good deal of factors that can have been taken into thoughtfulness when selecting these 40,000 employers include: companies with fewer than 15 laborers; companies with fewer than $10 million in sales; companies fewer than 10 years old; accounting, hr, business analyst, sales and advertisement positions; and petitions where the beneficiary plainly had a bachelor’s degree, not an innovative degree.
if your company is visited and your records are in order, you have not one thing to have a feeling of worry or showing solicitude with regards to. In general speaking employers are conscious of inconsistencies before any investigative agency can catch wind of it. That being said, whether or not the investigators uncover any inconsistencies or instances of fraud, the case can be denoted to u. S. Immigration and customs enforcement (ice), or the division of labor (dol) for further investigation depending on the offense. This could mean there will be monetary, and whether or not egregious offenses, possible criminal penalties for the employer.
the objective of the unannounced on-web site visits is clear: to detect fraud and abuses of the visa program. As stated by uscis, the offenses range from technical violations to outright fraud, with the most mutual violation being the non- payment of a prevailing wage to the h-1b beneficiary. More typically, the investigators can be on the lookout for the following types of violations: occupation location 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-existent business or office location; occupation duties importantly different from 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 web site visit? Step one is to ascertain that you have public access files (paf) for each h-1b worker, and that the paf documents are exact and up to date. In general, it’s a great thought to review and audit your h-1b/lca records to ascertain everything is in order and all info is readily available. Designate a specific person at each h-1b worker location to meet the investigator will have to he/she arrive. Prepare a quick list of facts with regards to the organisation and similarly a listing of h-1b laborers, work locatings, title and salary info so you don’t require to search frantically for this info while the investigator is there. Whether or not you are not certain what a paf is, or whether or not you’d like to have your documents reviewed by legal counsel, you can contact our office at the number or e-mail below.
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