Immigration Visa Lawyer Blog

The USCIS has recently disclosed last month, pursuant to a Freedom of Information Act (FOIA) request, a list of specific fraud indicators it uses to verify the integrity of H1B petitions in order to identify the likelihood of fraud. Once a petition has been flagged by the indicators, this will trigger further scrutiny, and the USCIS will refer the petition to the Center Fraud Detection Operations (CFDO). These indicators include:

• The Company declares that it has less than 25 employees
• The Company has less than $10 million in gross annual income
• Less than 10 years elapsed since the Company was established
• There is fraudulent information present in connection with the petitioner or beneficiary and/or forged documents
• The petitioning business is nonexistent
• Inconsistent or questionable Evidence about the proposed job duties and/or the qualifications of the beneficiary to carry out those duties
• Multiple H1B petitions filed by the Company at a rate of more than 10 times the number of employees it had the previous year
• No end client is shown in consultant or staffing agency contracts when such contracts are provided
• The employer has not been paying the claimed wage
• Employer is an IT consulting Company without a website
• Supporting documents appear to have been altered, counterfeited, or contain boilerplate language
• The petitioner, the notary, and the form preparer are all the same person with the same listed address, but there is a different address listed for the actual work location
• The location of the place of employment in different than that which is listed on the labor condition application (LCA) form
• Any photographs of the petitioner's premises appear to have been forged or changed
• The petitioner's address is zoned as residential instead of commercial
• The job duties listed in the petition do not match the LCA code
• Several of the petitioner's submissions have the same mistakes and appear to have been made by a preparer, but there is no G-28 form and no legal representation

The Department of Homeland Security and the US Citizenship & Immigration Services released unredacted copies of documents that have been sought by the American Immigration Lawyers Association after prolonged litigation. This is the result of a Freedom of Information Act lawsuit filed by the Legal Action Center of the American Immigration Council on AILA's behalf with Steptoe & Johnson LLP, AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010). The purpose of the FOIA lawsuit was to compel DHS and USCIS to release records of agency policies and procedures in connection with H-1B fraud investigations.

AILA submitted three FOIA requests to the USCIS in 2009 for documents including memoranda, standard operating procedures, and templates used for Requests for Evidence regarding H-1B petition fraud. USCIS initially decided to withhold documents. Once AILA filed suit in US District Court to compel turnover of the documents, USCIS determined that some information could be disclosed and released heavily redacted documents. The Court ordered the USCIS to better explain why the withheld information cannot be produced. Subsequently, in May 2012, USCIS disclosed the documents in full.

Documents released are the October 31, 2008 Neufeld Memorandum "H-1B Anti-Fraud Initiatives - Internal Guidance and Procedures in Response to Findings Revealed in H-1B Benefit Fraud and Compliance Assessment," H-1B Petition Fraud Referral Sheet, and Compliance Review Report.

The Neufeld Memorandum provides the following. Identification of the "10/25/10" fraud indicators include:

1. petitioners with a gross annual income of less than $10 million,
2. petitioners which employ 25 employees or less, or
3. petitioners whose business was established within the last 10 years.

The Memorandum provides that as a result of such review, the petition should be referred to the Center Fraud Detection Office if one or more of the following are identified:

1. presence of fraudulent information relating to the petitioner, the beneficiary, and/or any forged documentation,
2. evidence that the reported business was non-existent such as a questionable organization chart, photos of the business in a staged setting, zoning inconsistencies, or website information conflicts with the petition, or
3. inconsistent or questionable evidence of job duties and/or qualifications including experience letters without signatures, missing company addresses and/or telephone numbers, discrepancies or mismatches in required skills, age, or education.

The Memorandum provides that petitioners who meet the "10/25/10" fraud indicators above, should be paid particular attention for the presence of the following:

1. the physical job location is not listed on the Form I-129 petition and/or LCA,
2. the beneficiary is not receiving the prevailing wage as listed on the LCA,
3. misrepresentations regarding the beneficiary's current or prior immigration status,
4. evidence that the beneficiary paid the ACWIA fee,
5. conflicting information about the business and/or its operation,
6. the facility would not be appropriate for the type of work performed, or
7. the job offered is inconsistent with the normal activities of the business.

H-1B workers in the information technology field are better educated and earn more money than US workers in IT field, according to a new report by the Public Policy institute of California. However, the report is not without its critics.

The report found that the average wage income of an H-1B IT worker is 10 percent higher than that of a US worker. The report also shows that the average age of an H-1B IT worker is 30, while the average US IT worker is age 40. Less than 25 percent of US workers have a graduate degree, while nearly 50 percent of H-1B workers have a graduate degree.

The study was conducted by economists Magnus Lofstrom and Joseph Hayes in which they combine the data they obtained through Freedom of Information Act requests to the US Citizenship and Immigration Services and the US Census. Specific data about the H-1B worker population was taken from I-129 H-1B visa petitions including occupation, industry, education, age, and annual earnings. Specific data about US workers was taken from the US Census America Community Survey, which uses a 1 percent sample of the US population.

The study is getting attention from H-1B program supporters and critics as well. Norman Matloff, Professor of Computer Science at the University of California at Davis, disagrees with the report's findings. In his own written response to the report, Matloff takes issue with the authors' "incorrect descriptions of previous research findings to inaccurate descriptions of the H-1B visa itself." Matloff also believes the authors' statistical analyses are based on an inadequate understanding of the nature of the labor markets in question, and he further states that the authors cited two of Matloff's research papers several times but missed the central point of his research. The report did not examine some H1-B data factors, including the types of companies that hire H-1B workers.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

With the rise of H-1B visa audits, H-1B visa site visits and Labor Condition Application (LCA) investigations, the US Department of Labor (USDOL) Wage & Hourly Division (WH) is becoming more veracious in prosecuting employers suspected of violating LCA regulations. In this escalated enforcement environment, an immigration lawyer defending employers in H-1B visa audits must be a seasoned litigant. Having fiercely defended H-1B visa audit cases during the past several years, I can speak with authority on the subject. It is my belief that once an investigation is launched against an employer, the USDOL will rarely agree to walk away empty handed unless forced to do so by vigorous and aggressive litigation. H-1B visa dependent employers are more vulnerable and stand to receive more scrutiny as well as WH determinations carrying higher fines and back wages.

Some of the employer practices which I commonly see causing the launching of H-1B visa audits include benching of employees, paying employees "per diem" compensation instead of payroll, failing to file a new LCA once the employee changes employment, and failing to pay the employee after the H-1B visa petition is approved.

Whether the employer likes it or not, she might find herself suddenly facing an LCA or H-1B visa investigation process that may later lead to litigation and a potential financial liability as well as debarment from using the H-1B visa program. These consequences might very well bring the entire business to a lethal downward spiral. What I find as a common denominator in all H-1B visa audit cases I defended is that the employer is culpable to variant degrees. That is to say, there are usually issues that cause concern for employers once they undergo such a process. Hence, once the employer becomes subject to an H-1B visa audit or LCA investigation process, the USDOL will most likely find infractions and deviations from the LCA regulatory requirements somewhere in the employer's system. Perhaps such frequent incidence of employer deviation is caused by complex, and often conflicting, record keeping and reporting directives of the H-1B visa process vis-à-vis the realities of today's marketplace requirements.

Weakening the USDOL's Case

Hence, with such a high number of employer infractions and increasing H-1B visa audits, my job as an immigration lawyer is to preserve the employer's business from possible extinction and damage management. In my H-1B visa audit defense work, I am seeing back wages and penalties in the hundreds of thousands of dollars. I have found the best strategy for H-1B visa audit defense is to slowly and surely chip away at the government's case by engaging in a deliberate process of evidence elimination using advanced litigation strategies and tactics. The competent immigration lawyer must examine all pieces of evidence available to the USDOL and seek all possible ways to discredit or eliminate each such evidence entirely, thereby forcing the USDOL to return to the negotiating table. When the USDOL is faced with a weaker case, they will have a great incentive to settle the H-1B visa audit case with a much smaller dollar amount. It is only with such aggressive and vigorous litigation advocacy will the employer survive an H-1B visa audit case without having to close its doors for business, as often happens.

The Initial Investigation Stage

The H-1B visa audit process normally undergoes three main stages, namely, the LCA investigation process, the pretrial WH litigation process, and the trial before an Administrative Law Judge. At various steps in these stages, the employer is confronted with a myriad of allegations and legal issues that require careful handling. Mismanaging the employer's case from the outset of the process could increase the employer's liability. For instance, giving the WH investigator more evidence than requested by the initial investigation letter could increase the employer's liability.

Obviously, the best possible scenario for the employer is to survive the first stage in the H-1B visa audit process, namely the WH investigation process, without having to resort to a hearing. The initial LCA investigation process could be as short as a few months or as long as a couple of years. Often times, the investigation process ends up with the issuance of a "determination letter" signed by the WH Administrator setting forth the back-wages and penalties levied against the employer. The employer must remember that the WH investigator has little authority to settle the case at that point and has an absolute 15 calendar days to request a de novo review of the WH Administrator's determination before an Administrative Law Judge.

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