Articles Posted in Fraud

rejected-865417-m.jpgMany companies are pushing to increase the annual cap on H-1B visas, but this effort has found opposition. Some say the program is riddled with fraud, while others oppose the program altogether. Perhaps because of this, USCIS goes to great lengths to enforce its regulations. A recent case reveals insights into how it does so.

The case, Matter of Simeio Solutions, involves an H-1B beneficiary who was ostensibly (according to the I-129 petition) hired to complete “in-house projects” for clients at the company’s home office in Long Beach, CA. The beneficiary would thus not be sent to other worksites and would only work under the petitioner. The Labor Condition Application (LCA) and included Prevailing Wage Determination (PWD) reflected this. However, if USCIS was convinced that these circumstances would not change, it wasn’t for very long.

The beneficiary began working for Simeio as an F-1 student during OPT (which is a short-term work authorization that alien college students can take advantage of after graduation). During this time, an H-1B petition was filed on behalf of the immigrant by this same company, which was approved. The beneficiary then went home to undergo a consular interview to receive the visa. As usual, the consular officers wanted to verify some things on the petition. It is not public information what the officer said in the interview, but it is known that as a result, the petitioner was made to submit some additional evidence.

abscond.jpgA recent litigation regarding an H-1B visa audit, also known as a Labor Condition Application (LCA) Audit, raised a question that case law has not yet adequately addressed, even though the case isn’t unique. The case law in this area seems to muddle the facts without clearly addressing an employer’s obligation to pay the H-1B visa employee when he or she disappears and is never heard from. But prior to delving into the facts of our case, a review of the employer’s obligations is in order.

When does the Employer’s Obligation to Pay an H-1B Visa Employee Terminate?

The LCA obligates employers to pay H-1B employees an amount at least equal to the “prevailing wage” for their positions. (The Department of Labor (DOL) determines this wage.) There are two situations in which this obligation is known to be exempted. The first applies when an employer effectuates a bona fide termination of the employee. The second is when the employee experiences a period of nonproductive status due to conditions unrelated to the employment which take the employee from his or her duties (e.g. touring the U.S. or caring for an ill relative etc.) or render the nonimmigrant unable to work (e.g. maternity leave or an automobile accident etc.). The regulations, however, do not clearly address a situation in which the foreign national disappears.

business-man-avatar-vector-1431598-m.jpgAs the President’s expansion of DACA and the creation of DAPA under his immigration executive action plan are rolled out, sadly, we can expect to see a spike in the unauthorized practice of law (UPL). (These things will extend protections to many undocumented immigrants.) While all UPL is a crime and can mean serious consequences for those involved, immigration UPL is one of the most dangerous kinds. Mistakes or inaccuracies on filed petitions can create the perception of carelessness or even fraud on the part of the immigrant, when he or she is in fact the victim of fraud. This is why one must be careful when choosing immigration council. Victims of immigration UPL have had negative consequences ranging from paying unnecessary fees to removal proceedings being filed against them.

The undocumented immigrant population is a vulnerable group. They expect little to nothing from government–and will avoid doing most things that might cause them to reveal their secret. According to Pew Research, there are 11 million undocumented immigrants in the United States, with up to 9 million of them being from Latino countries. While the exact number of these who are not English fluent isn’t immediately discoverable, over half of the entire foreign born population is of “Limited English Proficiency.” One can intuit that the proportion of undocumented immigrants from south of the Rio Grande that also have “Limited English Proficiency” is much greater than 50%, because immigrants from overseas tend to have had better education, or come from countries where English is a secondary, or even primary language.

Following the announcement of the Deferred Action for Childhood Arrivals program in 2012, many undocumented immigrants found themselves eligible to stay and work in the country without fear of deportation, if they filed the proper paperwork. Most of these people had never dealt with an immigration attorney, and as a consequence, may not have known what to look for when choosing one. Widespread language obstacles included, these factors provided the necessary conditions for the community to be victims of fraud. In many Spanish speaking countries, a holder of the title Notario Público can provide the same, if not more, legal services as a lawyer in the United States. However, the title Notary Public in the United States provides one with a legal authority that extends not much further than the attesting of signatures on forms. As if often the case, a direct translation of words causes a great difference in meaning. In this one, the results can be devastating for a vulnerable population.