H-1B Audit News

In this page, we provide summaries of some interesting H-1B/LCA compliance case laws. Our website is now more comprehensive and we also welcome suggestions for new articles from everyone and, when requested, we always provide web and email links.
 
H-1B AUDIT NEWS

US Labor Department Obtains Consent Order To Recover More Than $638,000 in Back Wages from Newark, NJ, Computer Consulting Company

Company debarred for 1 year from participating in H-1B program

DOL Press Release: Following a consent order obtained by the US Department of Labor, Peri Software Solutions Inc. and its owner, Saravanan Periasamy, have agreed to pay $638,449 in back wages and interest to 67 workers for violating the H-1B provisions of the Immigration and Nationality Act.

The Newark company sponsored the H-1B non-immigrant workers to work as programmer analysts across the country.

Under the order, Peri Software Solutions Inc. and Periasamy also must pay $126,778 in civil money penalties and interest for failing to provide notice of the filing of labor condition applications at each place where any H-1B worker was to be employed and for filing lawsuits against H-1B workers for early cessation of employment. The company and Periasamy will be debarred from participating in the H-1B program for one year.

"Peri Software not only took advantage of these workers by not properly compensating them, it also violated the part of the law that provides the greatest protection to the American workforce," said Nancy J. Leppink, deputy administrator of the department's Wage and Hour Division. "When companies participating in the H-1B program do not post filed labor condition applications, they clearly undercut American workers who may be qualified for available employment but aren't aware of it."

Since 2005, investigations conducted by the department's Wage and Hour Division have resulted in more than $5.6 million in back wages and $300,000 in civil money penalties in New Jersey, not including this case. The most common violations found were the employers' failure to post notice of the filing of labor condition applications at every worksite where an H-1B worker may be employed, and failure to pay non-immigrant workers the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit or studying for a licensing exam.

The H-1B visa program permits employers to temporarily hire foreign workers in professional occupations such as computer programmers, engineers, physicians and teachers. H-1B workers must be paid the same wage rates paid to US workers who perform the same types of work or the prevailing wage rate in the areas of intended employment, whichever is higher. For more information about the requirements of the H1-B program, visit Department Of Labor.

The Wage and Hour Division enforces the H-1B wage provisions of the Immigration and Nationality Act, in addition to other federal laws pertaining to wage payments. For more information call the division's toll-free helpline at 866-4US-WAGE (487-9243) or visit Department of Labor-Wage and Hour Division.

H-1B Dependent Employer Beware: The US Department of Labor Announced that it will Exercise its Authority to Certify U Visas.

"On March 15th, 2010, the US Department of Labor ("DOL") Secretary Solis announced that the DOL will begin exercising its authority to certify applications for U Nonimmigrant Status Visas ("U Visas")." This tool can be used by the DOL in H-1B/LCA Audit and related Wage and Hour Investigations.

U visas as they are known are designed to help victims of qualifying criminal activities who have suffered substantial physical or mental abuse and are willing to assist law enforcement or other government officials in the investigation or prosecution of those crimes. "Regardless of immigration status, no one should have to suffer criminal abuse silently. U visas give some measure of security to immigrant victims who are desperate to escape an abusive situation and are willing to cooperate with law enforcement," said Secretary Solis. "I have instructed Labor Department investigators to identify potential U visa applicants as they conduct workplace investigations. This action will help local law enforcement rescue vulnerable immigrants from suffering and help put criminals behind bars."

Individuals who receive U visas may remain in the United States for up to four years and may eventually apply for permanent residency. The U visa was created by the Victims of Trafficking and Violence Prevention Act of 2000. Labor Department authority to certify U visas will be delegated to its Wage and Hour Division, which will identify potential applicants in appropriate circumstances during the course of workplace investigations. Among other U visa application requirements, a federal law enforcement agency or official must certify that the U visa petitioner has been helpful, is being helpful or is likely to be helpful in the investigation or prosecution of the criminal activity.

This office has discussed many times what is involved in a foreign national obtaining H-1B status. A person with an H-1B visa or H-1B status comes to the United States to perform services in a specialty occupation as described by law and that person meets the qualifications required to perform that occupation.

A person in H-1B status is considered a non-immigrant alien authorized to work for the sponsoring United States employer. The US employer petitions for the H-1B worker and establishes an employer-employee relationship. Documentation supports a petition that establishes the H-1B worker will be working temporarily in the US for the US employer.

On Jan. 8, 2010, the US Citizenship and Immigration Services (USCIS) issued a memorandum that addressed issues about third-party worksites. This would involve the US employer placing the H-1B worker at a site other than the employer's own premises. Ideally, the petition would still show control over the beneficiary. However, some situations may exist where a petitioner's business involves filling vacancies in other employers's businesses. A prime example would involve IT consulting. A US employer would need a staff of highly qualified IT professionals. That employer may then place those IT professionals in businesses seeking their expertise. Other examples are accountants and architects.

A point in the memo involved the employer-employee relationship. The employer does not have to show absolute daily control over the employee's work, but the employer must demonstrate a right to control the employee's work. Simply writing the employee's paycheck is not sufficient. 

If an employer terminates the employment of an H1B worker before that employee's period of stay has expired, the employer is obligated to pay the transportation costs by airplane of that employee to the country in which he or she last resided.

The employer can either provide the employee with the airplane ticket or can give the employee a reasonable amount to cover return and obtain a signed release.

It appears the employer is not required to pay the related transportation costs of the former employee's family members. Nor is the employer required to pay for shipping of property. If the terminated employee opts to remain in the US, the employer's obligation to pay transportation is removed.

It is important for the employer to carefully meet all legal obligations because if the employer fails to do so the terminated employee may file a complaint with USCIS. Although USCIS does not necessarily aggressively pursue such complaints. The former employee can also try to sue, but given the relatively small amount, he or she may not have the time or inclination to do it.

As always, an employer should keep thorough records for every detail of the employment of a worker in H1B status.

Notification of USCIS

An employer who terminates the employment of an employee in H1B status should immediately notify the USCIS Service Center that approved the H1B petition. There is no sanction for failing to do this, but it is always best for an employer to be thorough and to maintain records of the correspondence. USCIS will revoke the H1B petition, but processing may take two to four months.

Optimally, the employer should copy the terminated employee on all correspondence, so he or she also maintains thorough records and can plan accordingly. Also, if the termination is economically driven and unrelated to the quality of the employee's performance, keeping clear documentation of that is beneficial for both parties.

Payment to employee

An employer cannot temporarily lay off an employee with H1B status without full pay. If there is termination, then the requirement to pay ceases.

Written termination may be best, as there are questions as to whether the Department of Labor will instruct the employer to pay the employee from the time of termination until notification is received by the USCIS. Best to act promptly and thoroughly and always maintain records.

If the employer is planning to rehire the employee when the economic situation improves, it is probably simplest to file a new petition. Trying to rehire on the old petition may mean paying back pay. The employer should keep careful records of the termination.

Potential consequences for the H1B employee

Although a "grace period" for terminated H1B employees has been proposed and discussed, the reality is the employee's H1B status ends on the final date of employment. Obviously, USCIS evaluates each situation, particularly if an individual is out of status for a brief and easily explainable period of time. The terminated employee should avoid an extended stay out of status, as that may compromise future applications. Use discretion and keep documentation. A reasonable estimate is that departure within 30 days of termination will not be problematic; however, one should not cross 180 days (3 year bar) or 365 days (10-year bar). If additional time is needed-say to finish a child's school year-the H1B person should consider change of status (B-2 or F-1) for the duration of the stay in the US.

Movement to new H1B position

A terminated H1B employee can start working for a new H1B petitioning employer under the American Competitiveness in the Twenty-First Century act (AC21) immediately after a non-frivolous H1B petition is filed with the USCIS. Such a petition must be filed before the expiration date of the previous stay.

What constitutes expiration is vague. It may mean originally approved time or it could mean termination date of previous employment. If USCIS strictly adheres to the latter it will be extremely problematic for terminated employees in H1B status, especially in the current economy where employees are regularly seeing pink slips. Best to consult an Immigration attorney and do the utmost not to let status lapse even briefly.

USCIS' FDNS COMMENCES AUDIT OF H-1B PROGRAM, INCLUDING UNANNOUNCED SITE VISITS TO H-1B EMPLOYERS AND THEIR CLIENTS

Background:

1. Prior to execution and filing, counsel should obtain written confirmation that the petitioner has reviewed the petition in its entirety and confirmed the accuracy of all information material to the employer's sponsorship eligibility, the beneficiary's eligibility for the status benefit, the nature of the job offer, and the terms and conditions of employment specified in the petition and any supporting documents. If the employer's representative lacks personal knowledge of any material fact, counsel should insist upon such additional investigation as is necessary to confirm the accuracy of such fact prior to accepting the signed petition for filing.
2. If counsel learns at any time that material facts contained in the petition or supporting documents are false, counsel must advise the client of the need to file an amended petition in order to correct the record or to withdraw the petition and otherwise comply with the H-1B regulations with respect to termination of the beneficiary's employment. If the client refuses to agree to accept these recommendations, counsel should withdraw from representation of the client with respect to the petition containing the fraudulent representations and otherwise terminate the client.
3. Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H-1B petition to FDNS for a site visit prior to the completion of an adjudication. This may be especially true with H-1B extensions with the same H-1B employer.
4. Whether government agents or contractors require a warrant or subpoena in order to enter the private areas of a business to conduct H-1B investigations has not yet been tested. USCIS appears to take the position that submission of the petition by the employer constitutes a knowing waiver of Fourth Amendment rights. Whether or not the agency's position is upheld, if agents are admitted to the premises by representatives of the employer, such action is sufficient to constitute a waiver of Fourth Amendment rights. In general, personnel responsible for greeting visitors should be advised that it is company policy not to admit any unauthorized persons to the private areas of the business, including government agents or contractors, without the approval of a designated company official. In the case of agents or contractors investigating a visa sponsorship petition, the designated official should be knowledgeable of the petitioner's immigration program and the conditions under which the beneficiaries are employed. Generally speaking, counsel who prepared a petition should not volunteer to vouch for the accuracy of the information in the petition, unless he or she has personal knowledge of the facts at issue.
5. Clients should be advised to request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit in the H-1B program, including ICE, the USCIS Department of Labor's Wage and Hour Division, and/or the USCIS' National Threat Assessment Unit. Therefore, it is critical that the client determine which agency it is providing information to in the event follow up is needed. If the investigator identifies himself as a USCIS FDNS contractor, request a business card with a toll free number to obtain confirmation of his credentials prior to providing any information.
6. Counsel for the petitioner should be advised of the visitation prior to the conduct of any interviews of petitioner representatives and should attend in person or by phone, if possible.
7. Clients should be advised not to speak with government agents or contractors without a witness present. Both the witness and the interview subject should be debriefed as soon as possible by counsel following the interview. If this is not possible, both the witness and the subject should prepare notes of what transpired at the interview, label them "Privileged and Confidential/Prepared at the Direction of Counsel," and submit them to counsel for review and retention.
8. Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.
9. Clients should be advised of the benefit of providing a redacted copy of the I-129 petition and supporting documents to the beneficiary relating to the nature of the job opportunity, the terms and conditions of employment, and the beneficiary's education and prior work history. A mock interview of the beneficiary, with counsel for petitioner and the designated company official present, may be beneficial to relax the beneficiary and prepare him for possible interview. Again, refrain from coaching the witness and have a third party prepare a memorandum documenting what transpired at the session.
10. If the beneficiary has been placed at a client site not controlled by the client, the client should notify the end user about the current FDNS H-1B assessment program and the possibility of a site visit. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the identity of the H-1B employer and review the terms of the assignment. The employer should request that the end user company contact the employer at the beginning of an FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user's location.
11. If the employer and/or end user company has secure areas which are not accessible to the public and the FDNS officer requests access to these secure areas, the employer should explain to the FDNS officer about the secure areas and possibly suggest other less sensitive areas in order to conduct interviews with the beneficiary. Although employers should comply with reasonable requests from the FDNS officers regarding the examination of the employer's premises or work areas, the employer should explain if it (or its client when the site visit is occurring at an end user client location) has strict policies against tours or photographs in such areas.
12. If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not "guess" about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.
13. A representative of the petitioner (and/or counsel) should accompany the FDNS officer during his/her review of the facilities and request to be present during the interviews of any of the company's employees. This request may be denied in order to obtain the most candid responses from the employee. The interests of the beneficiary and the petitioner are not necessarily the same, and historically, government investigators have refused access to employer representatives and attorneys at employee interviews. The representative should take notes of all information requested and provided - verbally or in writing, the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit. Additionally, a record should be kept of any documentation provided to the FDNS officer during the site visit.
14. Employers should remember that any derogatory information obtained during the site visit could be used to deny a petition if the site visit occurs re-adjudication, could result in revocation of a previously approved petition in the post-adjudication process, and/or could be referred to ICE for further investigation, which could lead to civil penalties or criminal prosecution.

In his letter to the director of US Citizenship and Immigration Services, Alejandro Mayorkas, Grassley cited an Iowa company that was recently indicted for not having jobs available for the H-1B workers they petitioned for, and placing them in non-pay status upon arrival in the United States.  Grassley also noted that the business allegedly submitted Labor Condition Applications with the US Department of Labor that stated prevailing wage data for a location in Iowa rather than the higher prevailing wage for the location outside Iowa where the worker would actually be employed.  

"The United States is in need of an immigration overhaul.  Porous borders, shoddy workplace enforcement, and fraud-heavy guest worker programs all contribute to our illegal immigration problems.  We don't need a long, arduous legislative process to get at some of the problems.  The agency can take immediate steps to eliminate fraud in the H-1B program, including cracking down on body shops that do not comply with the intent of the law.  Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans," Grassley said.  "Asking the right questions and requesting the necessary documents will go a long way in getting out the fraud in the H-1B program."

Grassley also asked for an update on the steps being taken US Citizenship and Immigration Services to alleviate other problems found in the 2008 benefits fraud and compliance assessment.  The internal report found that more than 20 percent of petitions reviewed were based on fraud.  Grassley has proposed several legislative changes to the program, but says this is something that can be done administratively to get at the fraud perpetrated by employers.

Here is a copy of the text of the letter to Mayorkas. 
   
September 29, 2009

The Honorable Alejandro Mayorkas
Director
US Citizenship and Immigration Services
Department of Homeland Security
Washington, D.C.

Dear Director Mayorkas:

It's been one year since US Citizenship and Immigration Services (USCIS) released its benefits fraud and compliance assessment of the H-1B Non-immigrant Visa Program. This report evaluated the integrity of the H-1B visa program by reviewing a sample of petitions and by taking a comprehensive look at all aspects of the petition process.  Unfortunately, the assessment showed that 20.7% of visa cases reviewed were identified as having outright fraud or other program violations associated with them.

Upon release of the benefits fraud assessment, I wrote to Acting Director Jonathan Scharfen to ask what steps USCIS had taken or would take to restore integrity in the program.  Acting Director Scharfen reported to me that the agency had issued internal field guidance informing adjudicators of the findings and instructing them to make changes to how they adjudicate H-1B petitions.

While I appreciate the steps taken to alert USCIS Service Center adjudicators about the report and fraud indicators to be watchful for, I am surprised that no guidance has been provided to adjudicators, or to the public, about additional evidence to be gathered from petitioners.  Adjudicators were told to "seek to resolve any and all issues through a Request for Evidence" but the guidance did not specify the evidence that should be requested of applicants.  One of the changes that USCIS was considering, per Acting Director Scharfen, was clarifying what documentation must be submitted when the alien will be assigned by the H-1B petitioner to a third-party worksite.

We have seen substantial fraud and program violations by employers who bring in H-1B visa holders and then outsource them to other worksites.  Such was the case with the indictment of Vision Systems Group, Inc. earlier this year in my home state.  US Immigration and Customs Enforcement alleges that the company did not have jobs available for the H-1B workers they petitioned for, and placed them in non-pay status upon arrival in the United States.  Additionally, Vision Systems allegedly submitted Labor Condition Applications (LCAs) with the US Department of Labor (DOL) that stated prevailing wage data for a location in Iowa rather than the higher prevailing wage for the location outside Iowa where the worker would actually be employed.  

I seek your commitment to tackle this problem immediately.  Simply put, adjudicators should be asking companies up front for evidence that H-1B visa holders actually have a job awaiting them in the US, i.e. that workers are not coming in only to be "benched" by employers and that the job the workers are filling is the same job and in the same location as the lob/location described in the LCA approved by DOL.  I strongly encourage USCIS to request from petitioners that have stated they will be assigning H-1B workers to third-party worksites copies of relevant portions of any and all contracts or agreements between the petitioning company and the third-party worksites that prove the foreign workers will actually have work upon arrival and that the work will in fact be performed at the places described in the approved LCA and in the itinerary submitted with the petition.  This evidentiary requirement should be instituted immediately so that USCIS can ensure that H-1B workers are filling true vacancies rather than taking jobs from qualified Americans.

Acting Director Scharfen also noted that the agency was considering other anti-fraud initiatives, including:  changing the I-29 petition form; clarifying when a petitioner must file an amended H-1B petition based on a material change in employment; modifying the H-1B evidentiary requirements; prohibiting a petitioner from passing any fee associated with an H-1B petition to the beneficiary; and prohibiting subsequent filings by those who previously were found to have committed fraud in an attempt gain an immigration benefit.  I would like an update on these efforts that were being considered by USCIS, including detailed explanations as to why any of them have been shelved or not implemented in the last year.

Acting Director Scharfen also reported that USCIS would "soon begin using independent, open source data available through commercial sources to obtain information regarding the petitioner that would be relevant to the adjudication of the petition."  Has any action on this "independent documentation" effort taken place?  Do you, as the new Director, believe that such an initiative is worthwhile, efficient, and necessary?

In addition to the above-mentioned issues, I would like to know what other steps you are taking to alleviate the problems found in the 2008 benefits fraud assessment, including the following:

• Employees are working at locations not identified in the petition and/or Labor Condition Application (LCA); 
• Actual job duties differing from those described in the LCA and petition; 
• Failure to pay prevailing wage or required the beneficiary to pay some or all of the American Competitiveness and Workforce Improvement Act of 1998 fees; 
• Use of fraudulent or forged documents or signatures; and 
• Aliens misrepresenting they were maintaining status when returning to the US even though they previously had failed to maintain H-1B status.

Fraud in the H-1B visa program only hurts companies that play by the rules and truly need highly skilled workers.  For this reason, it's vitally important that your agency take all steps necessary to eliminate abuse and take action against those who do not comply with the law.

When we met prior to your confirmation hearing, you committed to rooting out fraud and abuse in all visa programs, but specifically the H-1B visa program.  Upon being confirmed, you also answered several questions for the record, including ones that I submitted about the H-1B visa program.  You said, "I believe the existence of fraud in the H-1B visa program needs to be addressed forcefully."   Your statement complements that made by Secretary Napolitano herself in her testimony before the Senate Judiciary Committee last May: "From an enforcement standpoint, my priority is to make sure that there's not fraud occurring within the H-1B program at all."  You also said you would promptly conduct a thorough review of USCIS programs to identify areas in need of improvement and in need of increased focus, and that you would develop a close working relationship with ICE to ensure that fraud and abuse are addressed through criminal prosecution.

I look forward to hearing about the thorough review that you promised to undertake as soon as you were confirmed.  I appreciate your consideration of the issues I have raised, and await your speedy response to this letter.

Sincerely, 
Charles E. Grassley 
United States Senator

LAW

ALJ Finds "Benched" H-1B Employee Entitled to Unpaid Wages(5/14/2009)

ALJ found that the employee did not need a SSN to begin work, only evidence of having applied for one, thus was in employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09).

ARB Finds Failure to Comply with H-1B Wage Requirements was Knowing and Willful(5/8/2009)

DOL Administrative Review Board (ARB) reverses the Administrative Law Judge's finding that the Administrator failed to meet the burden of establishing that the employer's conduct was willful so as to warrant civil money penalties. Employer failed to pay employee for non-productive time. Administrator v. Pegasus Consulting Group, Inc. (ARB, 4/28/09)

BALCA on PERM

BALCA Holds CO should have considered Audit Documentation when Ruling on Motion to Reconsider: BALCA reverses denial of PERM application. Employer omitted work history from 9089 needed to demonstrate requisite experience prior to being hired. But, BALCA finds that PERM recordkeeping file, before the CO in the course of audit, should have been considered when ruling on the motion to reconsider. Matter of Pa'lante, LLC, 2008-PER-00209 (5/7/09).

Iconic Quarterback Joe Namath, Nobel Laureate Dr. Eric Kandel, Comedian/Producer Jerry Seinfeld and Music Superstars Gloria & Emilio Estefan Honored With 2009 Ellis Island Family Heritage Awards
"The 8th Annual Ellis Island Family Heritage Awards, given annually to a select number of Port of New York and Ellis Island immigrants or their descendants, along with the B.C. Forbes Peopling of America Award were presented by Stephen A. Briganti, President and CEO of the Foundation, and Thomas L. Strickland, Assistant Secretary of the Interior for Fish and Wildlife and Parks, in an 11:00 a.m. ceremony hosted by actress Candice Bergen at the Ellis Island Immigration Museum."PRNewswire-USNewswire, May 19, 2009

Religious officials want immigration reform

"Religious officials last week called on the nation's leaders to reform immigration law during a prayer service at St. Bridget's Catholic Church to mark the anniversary of the Postville raid." Jean Caspers-Simmet, May 19, 2009

US to Expand Immigration Checks to All Local Jails

"In four years, the measure could result in a tenfold increase in illegal immigrants who have been convicted of crimes and identified for deportation, current and former US officials said." Spencer S. Hsu, May 19, 2009

Immigration: When Only 'Geniuses' Need Apply

"According to the US State Dept.-which makes the grants to successful applicants-9,014 O-1s were awarded in 2008, up 40% from 2004. Among current O-1 visa holders are Dallas Mavericks forward Dirk Nowitzki, Canadian author Jennifer Gould Keil, Israeli concert pianist Inon Barnatan, and members of the New York dance companies Merce Cunningham and Bill T. Jones/Arnie Zane." Moira Herbst, May 17, 2009

New day, new push to legalize farmworkers

"The bill would allow foreign farmworkers who have already been working illegally in the United States for at least two years to earn a path toward becoming legal residents. Family members would also be eligible, potentially

Immigration raid leaves damaging mark on Postville, Iowa

"Since the landmark raid, an economic squeeze has destroyed several businesses. Postville's population has shrunk by nearly half, to about 1,800 residents, and townsfolk say the resulting anxiety -- felt from the deli to the schoolyard -- has been relentless." Antonio Olivo, May 12, 2009

DOL to Keep Old LCA System Operational Through June 30, 2009

"The Department of Labor has informed AILA liaison that they will keep the old LCA system operational through June 30, 2009. The DOL has implemented fixes to many of the issues brought to their attention by AILA and other stakeholders thus far. The decision to keep the old LCA system operational will allow the DOL to continue to evaluate issues brought to their attention and to give users additional time to become familiar with the system."AILA InfoNet Doc. No. 09051232 (posted May. 12, 2009)
Cap Count for H-1B and H-2B Workers for Fiscal Year 2010

"As of May 11, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn." USCIS, May 11, 2009

Naturalized citizens are poised to reshape California's political landscape

"More than 1 million immigrants became US citizens last year, the largest surge in history, hastening the ethnic transformation of California's political landscape with more Latinos and Asians now eligible to vote."Teresa Watanabe, May, 11, 2009

Victims face deportation

"Richard Lemos and his wife, Nancy Hernandez, testified against a woman suspected of scamming people desperate to become legal in the United States. They are now facing deportation." Trent Nelson, May 10, 2009

EB-2 India retrogresses to January 1, 2000 for June Visa Bulletin
The May Visa Bulletin, with priority date of February 15, 2004, remains effective through May 31, 2009.

Employers of illegal workers to be targeted by US.

"In a major departure from the Bush administration, the Department of Homeland Security on Thursday issued new work site enforcement guidelines that shift the focus to employers rather than illegal workers and could be a harbinger of more immigration reforms." Anna Gorman and James Oliphant, May 1, 2009

Naturalization Process for the Military, Fact Sheet, May 1, 2009

USCIS' FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to H-1B Employers and Their Clients

The US Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS' current H-1B assessment program, and how to respond if an FDNS Officer visits the employer's (or its client's) office as part of this assessment program.

Background: USCIS created the FDNS in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS' efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS' primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS' budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition. FDNS has previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved. FDNS also used the information to develop databases to identify factors and trends that could indicate fraud. As previously indicated, FDNS has now commenced an assessment of the H-1B program.

Mechanics of a FDNS Site Visit: Unlike many of the site visits with the L-1, EB-1-3 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer's principal place of business and/or at the H-1B nonimmigrant's work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. The instructions for the current version of the Form I-129 contain a section outlining the USCIS' Compliance Review and Monitoring Methods. In these instructions, the USCIS states that its verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. The instructions also indicate that the USCIS will provide an opportunity to address any adverse or derogatory information that may result from a compliance review, verification, or site visit after a formal decision is made on the case or after the agency has initiated an adverse action, which may result in revocation or termination of an approval. If such information is not provided by USCIS when it issues the adverse action, FDNS has indicated that the employer may request a copy through the Freedom of Information Act (FOIA). During the H-1B site visit, the FDNS officer will normally verify information continued in a specific immigration petition, regardless of the number of H-1B petitions filed by the employer. The FDNS officer will normally have a copy of the petition. The FDNS officer will usually request to speak with the employer's representative who signed the Form I-129. However, because the site visit is unannounced, if this representative is not available, the FDNS officer will then ask to speak with another employer representative, such as a Human Resources Manager. When speaking with the employer's representative, the FDNS officer will ask the employer's representative for specific information about the company, including, but not limited to, the employer's business, locations, and number of employees. The FDNS officer may request to review a copy of the company's tax returns, quarterly wage reports, and/or other company documentation to evidence that it is a bona fide business. The FDNS officer may also request confirmation that the signature on the Form I-129 petition is genuine. The FDNS officer usually will request detailed information about the H-1B nonimmigrant's title, job duties, work location, and salary. The FDNS officer may also request to review a copy of the H-1B nonimmigrant's most recent paystub and last Form W-2. So far, FDNS officers have not been requesting to review the Labor Condition Application (LCA) Public Access file. The FDNS officer may also request information about the number of H-1B petitions that the employer has previously filed and information about the employer's immigration counsel. After speaking with the employer's representative, the FDNS officer may then request a tour of the employer's facility. During the tour, the FDNS officer may take photographs of the facility. The FDNS officer will then normally request to interview the H-1B beneficiary. During this interview, the FDNS officer may ask the beneficiary about his/her job title, job duties, responsibilities, employment dates, position location, requirements for the position, his/her academic background and previous employment experience, his/her current address, and information about his/her dependents, if any. After speaking with the H-1B beneficiary, the FDNS officer may then request to speak with a colleague of the beneficiary and/or the beneficiary's manager. When speaking with these individuals, the FDNS officer will again request information about the beneficiary's position title, the position duties, and the requirements for the position. After conducting the interviews and receiving any requested documentation, the FDNS officer will complete the site visit. H-1B site visits usually last for less than an hour. Practice Pointers for FDNS site visits:

       1. Prior to execution and filing, counsel should obtain written confirmation that the petitioner has reviewed the petition in its entirety and confirmed the accuracy of all information material to the employer's sponsorship eligibility, the beneficiary's eligibility for the status benefit, the nature of the job offer, and the terms and conditions of employment specified in the petition and any supporting documents. If the employer's representative lacks personal knowledge of any material fact, counsel should insist upon such additional investigation as is necessary to confirm the accuracy of such fact prior to accepting the signed petition for filing.

       2. If counsel learns at any time that material facts contained in the petition or supporting documents are false, counsel must advise the client of the need to file an amended petition in order to correct the record or to withdraw the petition and otherwise comply with the H-1B regulations with respect to termination of the beneficiary's employment. If the client refuses to agree to accept these recommendations, counsel should withdraw from representation of the client with respect to the petition containing the fraudulent representations and otherwise terminate the client.

       3. Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H-1B petition to FDNS for a site visit prior to the completion of an adjudication. This may be especially true with H-1B extensions with the same H-1B employer.

       4. Whether government agents or contractors require a warrant or subpoena in order to enter the private areas of a business to conduct H-1B investigations has not yet been tested. USCIS appears to take the position that submission of the petition by the employer constitutes a knowing waiver of Fourth Amendment rights. Whether or not the agency's position is upheld, if agents are admitted to the premises by representatives of the employer, such action is sufficient to constitute a waiver of Fourth Amendment rights. In general, personnel responsible for greeting visitors should be advised that it is company policy not to admit any unauthorized persons to the private areas of the business, including government agents or contractors, without the approval of a designated company official. In the case of agents or contractors investigating a visa sponsorship petition, the designated official should be knowledgeable of the petitioner's immigration program and the conditions under which the beneficiaries are employed. Generally speaking, counsel who prepared a petition should not volunteer to vouch for the accuracy of the information in the petition, unless he or she has personal knowledge of the facts at issue.

       5. Clients should be advised to request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit in the H-1B program, including ICE, the USCIS Department of Labor's Wage and Hour Division, and/or the USCIS' National Threat Assessment Unit. Therefore, it is critical that the client determine which agency it is providing information to in the event follow up is needed. If the investigator identifies himself as a USCIS FDNS contractor, request a business card with a toll free number to obtain confirmation of his credentials prior to providing any information.

       6. Counsel for the petitioner should be advised of the visitation prior to the conduct of any interviews of petitioner representatives and should attend in person or by phone, if possible.

       7. Clients should be advised not to speak with government agents or contractors without a witness present. Both the witness and the interview subject should be debriefed as soon as possible by counsel following the interview. If this is not possible, both the witness and the subject should prepare notes of what transpired at the interview, label them "Privileged and Confidential/Prepared at the Direction of Counsel," and submit them to counsel for review and retention.

       8. Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.

      9. Clients should be advised of the benefit of providing a redacted copy of the I-129 petition and supporting documents to the beneficiary relating to the nature of the job opportunity, the terms and conditions of employment, and the beneficiary's education and prior work history. A mock interview of the beneficiary, with counsel for petitioner and the designated company official present, may be beneficial to relax the beneficiary and prepare him for possible interview. Again, refrain from coaching the witness and have a third party prepare a memorandum documenting what transpired at the session.

    10. If the beneficiary has been placed at a client site not controlled by the client, the client should notify the end user about the current FDNS H-1B assessment program and the possibility of a site visit. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the identity of the H-1B employer and review the terms of the assignment. The employer should request that the end user company contact the employer at the beginning of an FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user's location.

    11. If the employer and/or end user company has secure areas which are not accessible to the public and the FDNS officer requests access to these secure areas, the employer should explain to the FDNS officer about the secure areas and possibly suggest other less sensitive areas in order to conduct interviews with the beneficiary. Although employers should comply with reasonable requests from the FDNS officers regarding the examination of the employer's premises or work areas, the employer should explain if it (or its client when the site visit is occurring at an end user client location) has strict policies against tours or photographs in such areas.

    12. If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not "guess" about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.

    13. A representative of the petitioner (and/or counsel) should accompany the FDNS officer during his/her review of the facilities and request to be present during the interviews of any of the company's employees. This request may be denied in order to obtain the most candid responses from the employee. The interests of the beneficiary and the petitioner are not necessarily the same, and historically, government investigators have refused access to employer representatives and attorneys at employee interviews. The representative should take notes of all information requested and provided - verbally or in writing, the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit. Additionally, a record should be kept of any documentation provided to the FDNS officer during the site visit.

    14. Employers should remember that any derogatory information obtained during the site visit could be used to deny a petition if the site visit occurs re-adjudication, could result in revocation of a previously approved petition in the post-adjudication process, and/or could be referred to ICE for further investigation, which could lead to civil penalties or criminal prosecution. The USCIS Vermont Service Center has indicated to AILA that it has transferred approximately 20,000 cases to the FDNS as part of the H-1B assessment program. It is assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review. This is an addition to the cases that are referred to the FDNS based on a standard profile worksheet, which is completed by the USCIS adjudicators as part of the regular H-1B adjudication process. Therefore, it appears that FDNS officers will be appearing at the offices of numerous H-1B employers (and their clients if the beneficiary is assigned to one of the employer's clients) within the next few months to gather information about their compliance with the H-1B program.