USCIS Issues H-1B Fraud and Compliance Assessment

 

The USCIS Office of Fraud Detection and National Security (FDNS), a division of the National Security and Records Verification (NSRV) Directorate in collaboration with the USCIS office of Chief Counsel issued a report in September 2009 assessing the integrity of the H-1B nonimmigrant program.  The report   provided primary fraud and technical violations based on a randomly selected sample of H-1B beneficiaries.

The methodology for the report was based on a random sampling of 246 new and extension H-1B petitions filed between October 2005 and March 2006.  Immigration officers conducted site visits to validate the information in petitions, including the existence of the petitioning employer, the stated employer/employee relationship between the petitioner and beneficiary, the capacity and locations specified, the requisite experience and/or qualifications of the beneficiary, and existence or non-existence of multiple and/or duplicate filings.

Fifty-one cases were confirmed as fraudulent or technical violations with an overall violation rate of 20.7%.  The most common violation were related to the job location listed on petitions.  The second most violation was failure to pay the prevailing wage.   Occupations with the highest rates of violations were positions in accounting, human resources, sales, advertising, and business analysis, followed by managerial positions and computer professionals.  The violation rate was higher in recently established companies, companies with fewer than 25 employees, and companies with gross revenues under $10 million.

The report issued primary fraud or technical violation indicators.  The Chander Law Firm notes that H-1B petitions employers that fall into any of these indicators will be subject to high levels of scrutiny:

1.  Firms with 25 or fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies.

2.  Firms with an annual gross income of less than $10 million have higher rates of fraud or technical violations than firms with an annual gross income greater than $10 million.

3.  Firms in existence less than 10 years (i.e., 1995 and after) have higher incidences of fraud or technical violations than those in existence for more than 10 years (i.e., before 1995).

4.  The results indicate that H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violations than other occupational categories.

5.  Beneficiaries with only bachelor’s degrees had higher fraud or technical violations rates than did those with graduate degrees.

Companies falling into these indicators should expect onerous and difficult requests for evidence to be issued in their H-1B cases.

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