H-1B Workers Getting Visits from Immigration Officers
December 21, 2020
The H-1B visa is a temporary visa provided to workers with higher education degrees or equivalent in specialty occupations. H-1B visas enable the certain industries, including tech, fashion, and government research agencies, as well as the Department of Defense to attract and hire workers essential to their success and progress. The Trump administration’s hard line policy on immigration included an aggressive stance on H-1B visas. In 2017, the Department of Labor (DOL) announced it would increase protections of American workers and vigorously enforce within its jurisdiction governing the administration and enforcement of non-immigrant visa programs. This included checking for visa program fraud and abuse.
What Types of Fraud and Abuse are Immigrations Officers Looking for?
The H-1B program is designed to help employers obtain workers with business skills and abilities that they are unable to hire from the U.S. workforce. Similarly employed U.S. workers are protected from adverse effects of the program in that employers must attest to the DOL that the H-1B non-immigrant workers will be paid wages that are at least equal to other workers with similar experience and qualifications for the same job or the prevailing wage for that occupation in that area. Paying an H-1B worker wages that are less than what a U.S. worker would receive for the same work is illegal. Individuals and corporations who violate the terms of the program can be disqualified from petitioning or be barred from participation.
As part of the process of obtaining an H-1B visa, employers must file a Labor Condition Application (LCA) that certifies the prospective H-1B worker’s wages. Wages are determined in part by the location of the job. Thus, the LCA is crucial for calculating the minimum prevailing wage for the certified area where the worker is employed. Deviation from the information stated on the LCA is considered fraud and any changes to the LCA must be disclosed to USCIS. Violations of H-1B law include:
- Using H-1B workers to displace U.S. workers because of a strike/lockout
- Misrepresenting labor conditions
- Discrimination against employees
- Requiring that employees pay fees for filing or early-termination of the visa
The DOL says their investigations have had significant results, including the convictions of employers, recruiters, attorneys, corrupt government employees, and labor brokers.
How Does the DOL Check for Visa Fraud?
The DOL announcement promised to aggressively confront entities committing visa fraud by conducting civil investigations to enforce labor protections for visa holders, referring criminal fraud to the Office of the Inspector General, and to work with the Department of Justice and Homeland Security to investigate and detect visa program fraud and abuse. Substantial resources are being focused on combating visa-related fraud schemes.
Why Do Immigration Officers Visit H-1B Visa Holders?
As part of their investigations, United States Customs and Immigration Services (USCIS) stepped up site visits to workplaces employing H-1B and L1 visa holders. The Administrative Site Visit and Verification Program began in July 2009 as a way to verify the information presented by employers in certain visa petitions. Unannounced site visits are part of the compliance review process. According to the USCIS website, at the site visit for the compliance review, immigration officers will verify the information submitted by the petitioner, verify that the petitioning organization exists; take photographs; review documents; speak with the beneficiary; and conduct interviews to confirm the beneficiary’s work location, hours, salary, duties, and physical workspace.
Because so much of the nation’s workforce has been working remotely since the start of the COVID-19 pandemic, the USCIS has begun visiting H-1B visa holders at their homes. While the agency maintains that home visits are critical to protect the integrity of the H-1B visa program, many see the tactic as intimidating and meant to induce fear in visa holders.
The USCIS says their site visits are random and that each compliance review focuses on one petition and one beneficiary. This means that one employer might receive more than one visit if they petitioned for more than one beneficiary. Site visits do not have be announced and some H-1B holders report being visited at home by the USCIS without prior announcement. Others said they received an email to arrange the home visit or to visit offices that were not the usual workplace.
What Should I Do If I Have an H-1B Visa and Work from Home?
Anytime an employer allows H-1B workers to work remotely in a place that is not within commuting distance from their designated office, the USCIS should be informed. H-1B workers who changed their work location during the pandemic should check with their employer to confirm that they reported the change to the USCIS.
Philadelphia Immigration Lawyers at the MC Law Group, LLC Offers Experienced Counsel for All Types of Visa and Immigration Issues
The U.S. immigration system is complex and constantly changing as new rules are introduced. At the MC Law Group, LLC, our Philadelphia immigration lawyers have a broad range of knowledge and experience to guide each of our clients through the immigration issues facing them. To schedule a free consultation, call 215-496-0690 today or contact us online. Located in Philadelphia, we serve clients throughout the tri-state area, including Pennsylvania, New Jersey, and nationwide.