Legal Updates


USCIS TO INCREASE SITE VISITS TO COMPANIES WITH H-1B VISA HOLDERS

April 16, 2018

A recent government report suggests that employers who have H-1B visa employees should prepare for an increase in worksite visits.  At the start of Federal Fiscal Year 2018, the Office of Inspector General (OIG), Department of Homeland Security (DHS), released its final report titled, “USCIS Needs a Better Approach to Verify H-1B Visa Participants”[1].  This report was the result of an audit of the Administrative Site Visit and Verification Program (ASVVP), a program that the U.S. Citizenship and Immigration Services (USCIS) implemented in 2009 to safeguard the integrity of certain visa programs, including the H-1B.  The H-1B program allows for the hiring of temporary, full-time foreign workers in “specialty occupations”, defined generally as positions for which at least a bachelor’s degree is required.

The audit focuses entirely on site visits used for oversight of H-1B petitioner companies and beneficiaries.  The audit notes that the H-1B program has been criticized by some as susceptible to fraud and that it is used to replace qualified American workers.  The audit seeks to determine how ASVVP and targeted visits could be better employed to reduce fraud.

DHS OIG’s Recommendations

In addition to ASVVP random site visits, USCIS also sends Immigration Officers (IOs) for targeted site visits when there are indicators of potential fraud.  Prior to this audit, USCIS already indicated there would be an increase in targeted site visits as a result of President Trump’s Executive Order, Enhancing Public Safety in the Interior of the United States [2].  The audit report strongly advises that while an increase in targeted site visits would be beneficial, there has been a lack of timely action taken by USCIS when they have negative conclusions from visits and that should also be a focus for improving the efficacy of the visits.  The report also notes a lack of information sharing between agencies, including other agencies that could act on cases of fraud.  For example, the Department of Labor (DOL) can prohibit employers from filing H-1B petitions for a period of time when there is non-compliance or fraud the H-1B program wage attestation, which DOL oversees.

The OIG report made four recommendations to USCIS:

  1. USCIS should improve the process to collect and analyze site visit data as well as utilize that data to assess the effectiveness of the ASVVP.
  1. USCIS should improve ASVVP information sharing processes with external stakeholders.
  1. USCIS should evaluate and adjust the number of site visits, increase training of IOs who conduct visits, and modify the current random selection of site visits to prioritize high-risk or repeat offender petitioners.
  1. USCIS should develop policies to more frequently and efficiently ensure adjudicate action when site visits reveal fraud or non-compliance.

Suggestions for H-1B Employers

USCIS concurred with all the conclusions and recommendations made in the OIG audit report.  They indicated that the Office of Fraud Detection and National Security (FDNS) division of USCIS is already engaged in targeted site visit program enhancements including developing a new Targeted Site Visit and Verification Program (TSVVP) to more effectively target potential fraud.  This is being implemented in phases throughout 2018 and one of the initiatives aims at doubling the number of site visits annually.  FDNS IOs will also be more extensively trained to do site visits which they suggest will improve consistency.  Lastly, USCIS indicated FDNS is taking measures that should lead to more efficient and timely adverse administration action when non-compliance or fraud is discovered during a site visit.

As a result of the audit and USCIS initiatives to improve enforcement through site visits, employers should prepare for an increase in site visits.  Information Technology consulting companies, particularly those that place employees at third party worksites, are a focus of, both the OIG and USCIS portions of the final report and should expect an increase in worksite visits.  Some of the ways to prepare for these visits include:

  1. Notifying all H-1B employees of the increase in site visits.

Whether it is random or targeted, a site visit from USCIS IOs can prove stressful for H-1B employees. While still only a small percentage will be part of a site visit, it is helpful to put all employees on notice that this is more likely to happen, whether it is random or part of the increased targeted visit initiatives, so they can prepare.  Some of the questions that will be asked are consistent across the country and types of companies so employees can be prepared to answer those standard questions, including the identity of their employer and their supervisor’s names (particularly relevant in third-party placements), salary, job duties, hours, and current projects they are working on.  OIG also suggested that IOs obtain photocopies of more documentation while onsite so employees should be ready for IOs to copy or photograph ID badges, paystubs, company employee lists, work stations, etc.

  1. Remind all employees to notify HR and their supervisor of the visit.

While the encounter is still fresh in their mind, all H-1B employees who undergo site visits should report the details of the visit to their company’s HR department and supervisor.  That information should also be shared, either directly from the employee or company representative, with their legal counsel.

  1. Employers should verify they have complete public access files for all H-1B employees.

All H-1B employers must keep a file for each H-1B employee.  The file must contain the certified LCA, rate of pay, description of the wage system, prevailing wage and source, documentation that the notice requirement was satisfied, benefits offered to U.S. workers and H-1B workers, and a list of entities included as a “single employer” where applicable.[3]  Additionally, the employer must make these available for public inspection by request.

Word of Caution for All Employers

Even employers that do not currently employ H-1B workers should take heed of this report and its emphasis on worksite visits as a method of enforcing federal regulations.  For example, the U.S. Department of Labor also has workplace enforcement authority to conduct audits of employers’ payroll practices applicable to all employees.  Part of the OIG’s audit report called for greater collaboration between agencies, including with DOL.  Whether this emphasis on workplace enforcement initiatives expands DOL’s similar initiatives remains to be seen; however, employers are wise to conduct internal audits to be prepared.

For questions regarding this article, please contact the author, Attorney Callie Kidder Lacy (email clacy@strangpatteson.com; telephone 844.833.0831, or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] U.S. Office of Inspector General, Department of Homeland Security, OIG-18-03, USCIS Needs a Better Approach to Verify H-1B Visa Participants, (2018), https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-18-03-Oct17.pdf

[2] Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017).

[3] 20 CFR § 655 Subparts H & I and the Immigration and Nationality Act § 212(n).

Back to Legal Updates

Focus | Wisconsin

We are also focused on providing legal services in other areas that our clients need, such as real estate, general business law, creditor’s rights, and business litigation.

  • Offices:
  • Green Bay, Madison, and Oshkosh
  • Service Center:
  • Milwaukee

©2014-2018 Strang, Patteson, Renning, Lewis & Lacy     Virtualtech Website Design and Promotion, Inc.
Photo Credit Chris Rand