Careful Preparation of H-1B Petitions More Important than Ever: USCIS Announces Increase in H-1B Site Visits

U.S Citizenship and Immigration Services (USCIS) issued a news release on April 3, 2017, announcing additional measures to detect H-1B fraud and abuse, including an increase in site visits of H-1B employers. USCIS has been making random site visits of H-1B and L-1A employers for several years. The April 3rd news release states that USCIS intends to take a more targeted approach in its site visits to employers who participate in the H-1B program, focusing on three categories of employers:

• H-1B petitions where USCIS cannot ascertain an employer’s basic business information though commercially available data (such as the VIBE database)
• “H-1B dependent” employers (those who have a high ratio of H-1B workers as compared to U.S. workers)
• Employers petitioning for H-1B workers work off-site at another company or organization’s location

The government contends that these increased measures will help protect American workers who have been “ignored or unfairly disadvantaged” due to employers who abuse the H-1B program, “decreasing wages and job opportunities as they import more foreign workers.” USCIS has also released an email address for reporting purposes, encouraging members of the public to submit tips or information regarding potential H-1B fraud or abuse.

What is VIBE?

USCIS currently uses a program called VIBE (Validation Instrument for Business Enterprises) to validate an employer’s basic business information, which relies almost completely on information from Dun & Bradstreet (D&B). It is worth noting that many valid businesses are not registered with D&B, including well-known and public companies. Also important to note is that USCIS’ current process with most employment-based filings already includes a VIBE check. If a company does not clear VIBE, USCIS will issue a Request for Additional Evidence asking the employer for proof that they exist and are actively doing business. Before filing an H-1B or other employment-based petition, employers should ensure that the company’s information with D&B is up to date.

What Does it Mean for an Employer to be “H-1B Dependent?”

An employer with 25 or fewer full-time employees in the U.S. is considered H-1B dependent if it employs 7 or more employees in H-1B status; an employer with 25 to 50 FTEs in the U.S. is considered H-1B dependent if it employs 13 or more employees in H-1B status; and an employer with 51 or more FTEs in the U.S.is considered H-1B dependent if 15% or more of its workforce is employed in H-1B status.

Every Labor Condition Application (LCA) filed for an H-1B worker must disclose whether an H-1B employer is H-1B dependent. For this reason, and because of the requirement that employers notify USCIS upon termination of an H-1B employee and withdraw the LCA, it is important to inform immigration counsel immediately of the termination of an H-1B employee, so that appropriate steps can be taken.

What Does It Mean in Practice if an Employer is “H-1B Dependent?”

Under current law, employers that are H-1B dependent (or have been found to be willful violators) are required to follow specific steps before filing an H-1B petition, unless the foreign national is exempt from these additional requirements. (An exempt foreign national is someone who will earn at least $60,000 in the H-1B position or who holds a Master’s degree or higher in a field related to the employment.) These additional steps include engaging in a competitive recruitment process to ensure that there are no available U.S. workers who are equally or better qualified than the foreign national. H-1B dependent employers must also make attestations that they have not displaced U.S. workers at their place of employment, or on the site of a third party.

What Happens During a Site Visit?

USCIS site visits are conducted by its Fraud Detection and National Security (FDNS) unit, which conducts unannounced inspections of the worksites of employers who sponsor foreign workers. The purpose of a site visit is to verify the existence of the employer, check the truth of the information provided by the employer in its immigration petition, and ensure that sponsored workers are complying with the terms of their admission to the United States.

During a site inspection, an FDNS officer will verify the contents of a specific immigration petition, usually by visiting the work location listed in the petition. The officer may ask to speak to a human resources manager or other company representative, the foreign worker and his or her direct supervisor or manager. The officer may ask for a tour of the premises and request documents like payroll records and organizational charts. The employer can ask to have an attorney present during the site visit. Officers will not typically reschedule a site visit so that an attorney can be there, but may agree to allow counsel to be present by telephone.

After a site visit, the officer may contact the employer by phone or email to request additional information. If there appears to be a discrepancy between the petition and the information gathered during the visit and in subsequent communications, USCIS may notify the employer of its intent to revoke the petition. If that occurs, the employer will have the opportunity to explain any perceived inconsistencies. If there have been material changes to the foreign worker’s job or conditions of employment since the approval of the petition, the employer may need to file an amendment with USCIS.

How Should Employers Prepare for a USCIS Site Visit?

Your organization should make sure it is prepared for an USCIS site visit. A point person should be designated at each worksite where a sponsored foreign national is employed. Receptionists and security personnel should be instructed about receiving FDNS officers. Foreign nationals and their managers should also be advised of the possibility of a site inspection and what to expect.

Conclusion

The April 3, 2017 USCIS news release announcing increased H-1B site visits may be a precursor to what is to come by way of a future Executive Order affecting high-skilled immigration. Until then, employers should conduct business as usual, being mindful of the possibility of more frequent site visits, and contact McCown & Evans immediately if they are subjected to a site visit. McCown and Evans will continue to monitor the situation and work with our clients to ensure they are in full compliance with the immigration laws.