John Valdez’s Legal Blog

On October 8, 2008, the USCIS released a report on incidences of fraud and technical mistakes in the H-1B Program.  This report, described below, may well result in a more burdensome H-1B process.

 The report involved a sampling of cases filed in 2005 and 2006 that were randomly chosen for investigation.  The investigation involved the review of cases filed and the use of workplace inspections.  The results, as reported, were somewhat surprising.  The USCIS found that out of 246 cases, 20.7% involved incidents of fraud and technical violations.  Fraud cases made up 13.4% of the findings, while technical violations were found in 7.3% of the cases.  I would caution readers that while the report cites violations in more than 20% of the cases, it is entirely possible that petitioners and beneficiaries may have valid defenses to the accusations that could be asserted in administrative or court proceedings.

Regardless of the accuracy of the report, the findings are sure to motivate critics of the Program to demand changes to the H-1B Program.  Many of the findings will bring outrage from these critics, including reported incidents of failure to pay the prevailing wage, improper employer demands for employees to pay H-1B business expenses, forged documents, and even a few incidents where the petitioning company allegedly did not exist.

Having represented employers on H-1B petitions for more than 12 years, I can attest to the fact that the employers I have worked with have tried to fully comply with H-1B rules and regulations.  Therefore, I am very skeptical of the government’s H-1B findings.  Regardless of my skepticism, the government may very well impose some or all of the following actions:  

•  Using independent open-source data to obtain information about visa seekers or petitioning companies.  This information could involve checking public information on a beneficiary’s credentials, commercial records to ascertain if a company is truly operating, and other such data.
• Using risks factors to apply greater scrutiny to cases in a class with a perceived higher incidence of fraud.  This additional scrutiny could result in much longer wait times for adjudication of many petitions;
• Adding additional evidentiary requirements that could make filings more burdensome; and
• Requiring more information on immigration forms.

Smith & Garg, PC immigration attorneys help employers follow H-1B regulations.  We are knowledgeable in all immigration compliance rules.  Please contact us if you have any questions about the H-1B program.