The H-1B visa is a popular topic of discussion amongst lawmakers and U.S authorities. It serves to complement the U.S population’s workforce with skills of foreigners.
The H-1B visa is for employers to hire foreign employees if they could not find a qualified, willing, or available U.S worker for the position. Each year, the U.S Citizenship and Immigration Services (USCIS) receives petitions from employers for these visas. The U.S Congress though has limited the number of H-1B visas for each year. Currently, there are 65,000 H-1B visas and another 20,000 for those with U.S higher education.
The goal of the H-1B program was to bring benefits to U.S employers and the economy. However, the program has been subject to a lot of fraud and abuse.
This article will go through common types of abuse and fraud for the H-1B visa and a few solutions to it.
What Qualifies as H-1B visa Fraud and Abuse?
To get the approval of USCIS for hiring a foreign worker, employers must follow the rules. They must hire the person to work in a specialty occupation with a complex job. They must agree to pay the foreign worker a fair wage. The wage must be as they would pay a U.S worker in a similar position. Also, they must ensure that they have fair labor conditions. Finally, they must be able to prove that a U.S worker was not qualified, willing, or available to work in that job position.
Breaking these rules would mean that the employer is engaging in H-1B visa fraud and abuse. The foreign employee does not have many opportunities for fraud, but the employer can do more. That is why USCIS updates the rules for the H-1B visa, and they have developed these fraud indicators.
The foreign employee is not getting a fair wage as certified on the Labor Conditions Application (LCA)
Before the employer can file a petition to hire the foreign employee, they must first get a certification from the U.S Department of Labor (DOL). This certification is the Labor Conditions Application (LCA). It states the rules and conditions through which the U.S company will hire foreign employees. It specifies duties and job positions, as well as salaries.
The salary rule is that the foreign employee must get the wage specified in the LCA. The wage must be fair and the foreign employee must not be discriminated or paid less than the amount on the LCA.
There is a difference between the wage that the foreign H-1B worker is getting and a U.S worker in the same position
Another rule that the U.S employer must follow is wage equality. In the LCA, the employer must certify that the wage paid to the foreign worker is similar or the same to what a U.S worker would get in the same job position. The foreign worker must not get a much lower or much higher salary than the U.S worker would get. This would discriminate either against the foreign worker or against the U.S worker.
The foreign employee is not more qualified than a U.S worker for the same duties and job position
As part of getting the LCA, the U.S employer must post job ads so U.S workers can respond if they want that position. If U.S workers apply, the employer must take them through the hiring process. The U.S workers undergo tests and interviews to prove that they are qualified. If no one fulfills the requirements, then the U.S employer is right to hire a foreign worker.
But, there are instances when the foreign employee is not more qualified than the U.S worker. So, even though the U.S worker is more than capable of doing the job, the employer hires the foreign employee. This could be due to the fact that the foreign employee will have duties outside of their job description or is being paid less. Either way, this qualifies as fraud and abuse of the H-1B visa program.
The foreign employee is not working in a specialty occupation or has to do other duties that are not in their job description
Another rule for the H-1B visa program is that the foreign employee must work in the job position specified in the LCA. When filing the LCA to the DOL, the employer describes the work that the foreign employee will do. They describe the job position and all duties.
If the employee is not working in that job position or they are doing different duties, then that is H-1B visa fraud. The employee may also have to do more job duties than the LCA states and that is against the rules too. The employee must at all time work in the job position that was in their contract and the LCA.
The foreign employee is not working in the location that written on the LCA
Another detail that the U.S employer must include on the LCA is the location of work. The foreign employee must always work in that location. If the employer instructs the foreign employee to work on another site or for a third party client, then they are breaking the H-1B visa rules.
To do this, they must inform USCIS and submit documents which support why the foreign employee has to transfer to another location.
How to Prevent H-1B Visa Fraud and Abuse?
USCIS is aware that there is fraud in the H-1B visa program. That is why they work to pass different policies to combat this behavior. They go into partnerships with other organizations and try to get the employees to report their employers of such fraud and abuse. USCIS has put in place the mechanisms described below to decrease the H-1B visa fraud.
More rigorous and targeted site visits
USCIS conducts random site visits to the employers who hire with H-1B visas. But since the increase in fraud and abuse, they announced that they will increase and target these site visits. This means they will be more frequent and will target groups of employers who are more likely to engage in fraud. These groups of employers are:
- Those that qualify as H-1B dependent employers. This means that they have a high ratio of H-1B foreign workers compared to U.S workers. For large organizations, this could be a 15% higher ratio of H-1B foreign employees.
- Those for which USCIS cannot confirm business information through commercially available data. If this happens, USCIS will suspect that some fraud and abuse is happening within the company since there is no public information on them.
- Those employers that have H-1B workers at third party sites. These are H-1B employees that work on a different site with the clients of the U.S employer who hired them. USCIS has determined that this group is more likely to engage in fraud so they keep a closer check on them.
During the site visits, USCIS checks whether the employer has any indicator of fraud or other problems. They interview the employees to ask them what they do during the day, where they work, and how much they earn. Through this, they verify that the employer is complying with the H-1B visa rules.
Email address for reporting fraud
Another way that USCIS is trying to combat the H-1B visa fraud is by involving the employees in it. They have set up an email address [email protected] where they accept tips for H-1B visa fraud. People can send emails to them reporting their suspicions that a particular company is engaging in fraud.
The people sending the emails must include this information:
- The name of the company;
- The address of the company or the location of the H-1B workers;
- The description of the fraudulent behavior or suspected abuse;
- The sender’s personal information (name, phone number, email address);
- Other relevant information regarding their suspicions.
Then USCIS can decide to further investigate the company as well as conduct a site visit. Since setting up this email address in 2017, USCIS reported that they received around 5,000 complaints from people in only one year.
Among their other initiatives, USCIS is also trying to increase the transparency of the H-1B visa program. With the increased focus on U.S citizen employment, U.S companies and workers want to know more. They specifically want to know how the H-1B visa program is working and who is getting the jobs.
That is why USCIS announced that after the 2018 fiscal year ends, they want to publish the data on the petitions. They also want to make a searchable platform so that the public can find information. The information will be on how the H-1B visas are being used from U.S companies and foreign employees.
How Can H-1B Visa Workers Get Protection if They Report Fraud or Abuse?
Through their initiatives, USCIS wants to empower H-1B visa workers to come forward and report fraud from their employers. But most of the time, foreign workers will hesitate to report such abuse because they are afraid to lose their H-1B visa status. Without the visa, they will not be able to live and work in the U.S.
To incentivize them to come forward, USCIS has designed a few rules to protect H-1B visa holders. USCIS will offer special treatment to H-1B visa cases who report fraud from their employers. H-1B visa workers who are in these situations could get special treatment:
- Those who want to extend or change their nonimmigrant status;
- Those who have faced negative actions from their employers because they reported a violation;
- Those who have lost or could not maintain their H-1B visa status.
In these cases, USCIS will review cases individually and can decide to waive or be more lenient in some of the requirements as long as the foreign worker has reported and can prove abuse from their employer.
Last Updated on