Workplace site visits conducted by U.S. Citizenship and Immigration Services are not protecting against fraud in the H-1B program, according to a new report by the Office of the Inspector General, which oversees the agency and conducts audits of its operational efficiency.

“USCIS site visits provide minimal assurance that H-1B participants are compliant and not engaged in fraudulent activity,” according to the report titled, “USCIS Needs a Better Approach to Verify H-1B Participants.”

In its findings, the report determined that USCIS is conducting a limited number of visits, that the agency lacks standardized policies to ensure anti-fraud officers are thorough and take proper action when they discover fraud or noncompliance, and that it is not using the results of site visits in adjudicating subsequent H-1B petitions to prevent recurring violations. The report also criticized the agency for not collecting performance data for its targeted site visit activity or for H-1B employees whose visas have expired or been revoked.

“By failing to take more proactive steps to identify petitioners with prior unverified site visit results and ensure that subsequent petitions submitted by these petitioners are not approved, USCIS permits noncompliance — including fraud — to perpetuate in the H-1B program,” the report concluded.

Key points:

The report made four recommendations that USCIS has accepted. The agency is introducing the following changes in 2018 to address each recommendation.

  • Tracking H1B site visit activity. USCIS is introducing the Targeted Site Visit and Verification Program, which will track H-1B site visits by the Fraud Detection and National Security unit (FDNS). The site visits will be visa-specific and use risk criteria, a hybrid between randomly-selected “compliance” visits and “for cause” visits based on fraud red flags during processing. FDNS guidance is expected by the end of June 2018 and the program is expected to be completed in September 2018.
  • Sharing site visit information with other agencies. USCIS will enhance information-sharing with the Department of State and the Department of Labor. The DOL will share access to Labor Condition Applications with USCIS and the DOL will be able to access the USCIS VIBE database of employers who are under investigation or who are found to have committed fraud. USCIS is in the final stages of providing State Department officials with access to site visit information to use when adjudicating visa applications and it is working on an agreement under which the DOS would share derogatory information discovered during visa adjudications with USCIS. USCIS also plans to share site visit information with the Department of Justice for investigating H-1B employers who discriminate against U.S. workers.
  • Doubling the number of site visits. Under the Targeted Site Visit and Verification Program, site visits will be more targeted and more frequent, doubling in number to 20,000 each year and increasing annually based on budget and priorities. To reduce turnover of immigration officers who conduct H-1B site visits, the agency will hire additional officers at a higher wage by the end of 2017.
  • Using site visit results in H-1B adjudication. The FDNS is training officers on a current USCIS policy that closely scrutinizes H-1B petitions for technology workers and that expects more consistent site visit results, assisting the agency in prioritizing adverse decisions against fraudulent or noncompliant employers. The training program is to be completed by the end of June 2018.

BAL Analysis: The report sends a strong signal to USCIS to more heavily focus on fraud and potential abuse in the H-1B program. Companies employing H-1B workers should anticipate that USCIS will increase the number of H-1B-specific workplace site visits, will share information with the DOS, the DOL and the DOJ, and that adjudicators will increase the use of adverse site visit results to deny subsequent H-1B petitions to employers found to be noncompliant.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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