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 around the u. S. These web site visits begun as portion of the cis’ goal to decrement the number of h-1b violations and instances of fraud reported by the h-1b gain fraud & compliance assessment from cis’ office of fraud detection and national security (”fdns”), published this past september. As stated by the fdns’ findings, as a lot of as one in five h-1b applications were affected by either fraud or “technical violations” of the h-1b program.
why ought to employers care? Any employer who sponsored a foreign national worker for an h-1b visa may be subject to an unannounced web site visit. What this means is that an investigator may randomly show up at a worksite and demand to see a copy of the h-1b petition, interview the individual who represented the organization in connection with the h-1b as well as the h-1b employee or other workers presently on web site. Any inconsistencies found may mean large disturb for employers.
fdns has conveyed that it does not need a subpoena in order to complete the web 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. Nonetheless other roots say that employers aren’t expected 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 conveyed that attorneys may be present during 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 may be present thru 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, ought to i be concerned,” “what type of violations are the investigators on the lookout for,” and “how may 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 may 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 lot of elements that may have been taken into considerateness when selecting these 40,000 employers include: companies with less than 15 workers; companies with less than $10 million in sales; companies less than 10 years old; accounting, hr, business analyst, sales and advertising positions; and petitions where the beneficiary simply had a bachelor’s degree, not an progressed degree.
if your company is visited and your records are in order, you have nothing to worry regarding. In general speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be denoted to u. S. Immigration and customs enforcement (ice), or the department of labor (dol) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.
the goal to be attained of the unannounced on-web site visits is clear: to notice fraud and abuses of the visa program. As stated by uscis, the offenses range from technological violations to straight-out fraud, with the most mutual violation being the non- payment of a prevailing wage to the h-1b beneficiary. More distinctively, the investigators may 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 former h-1b position prior to new employer h-1b being filed); and h-1b worker remunerated the $1500 acwia fee.
how may you prepare yourself and your company for a possible web site visit? Step one is to ensure that you have populace access files (paf) for every h-1b worker, and that the paf documents are accurate and up to date. In general, it is a good idea to review and audit your h-1b/lca records to ensure everything is in order and all data is readily available. Designate a particular individual at every h-1b worker location to meet the investigator ought to he/she arrive. Prepare a quick list of facts regarding the organization and likewise a listing of h-1b workers, work locations, title and salary data so you don’t must search frantically for this data while the investigator is there. If you’re not certain what a paf is, or if you’d like to have your documents reviewed by legal advice, you may contact our office at the number or e-mail under.
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