June 5th, 2018
The discussion about H-1B visa is very popular amongst lawmakers and U.S authorities just because it serves to complement the U.S population’s workforce with skills of foreigners.
The H-1B visa allows employers to hire foreign employees only if they could not find a qualified, willing, or available U.S worker for the position in question. The U.S Citizenship and Immigration Services (USCIS) receives petitions from employers for these visas. As in any visa process, the U.S Congress has set a limit on the number of H-1B visas issued each year. Currently, there are 65,000 H-1B visas and another 20,000 for those with the U.S higher education.
The goal of the H-1B visa program is to bring a highly qualified workforce that can bring benefits to the U.S employers as well as the economy. However, this program has been subject to a lot of fraud and abuse.
In the further article, we will go through some of the 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?
Employers must follow certain rules in order to get the approval of USCIS to hire a foreign worker. The foreign worker that needs to be hired in the U.S needs to work in a specialty occupation with a complex job. The foreign worker is entitled to a fair wage that the employer must pay. The wage must not be different from the wage they would pay a U.S worker. Fair labor conditions must also be ensured. Finally, they must prove that they cannot find a U.S worker that is qualified, willing or available to work in that job position.
If any of these rules are broken, it would mean that the employer is engaging in H-1B visa fraud and abuse. The foreign worker does not have many opportunities for fraud like the employer. This is the only reason 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 go through the process of hiring a foreign worker, they must first get certification from the U.S Department of Labor (DOL). The Labor Conditions Application (LCA) is the certification in question. This will state the rules and conditions through which the U.S company will hire foreign employees. This will specify more thoroughly the job positions, specific duties, as well as salaries.
This salary rule means that the foreign employee must get the wage specified in the LCA. Fair and not discriminative wage must be guaranteed by the employer, and it cannot be less than the amount specified in 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
This rule is about the wage equality that the U.S employer pays. They must clarify the wage in the LCA and prove that the foreign worker will get similar or the same wage to what a U.S worker would get in the same job position. The foreign worker cannot get a lower or much higher salary than the U.S worker would get. Without these actions, they would discriminate either 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
Besides the part of getting the LCA, the U.S employer must post job ads so U.S workers can respond if they are interested in the position. If any U.S worker applies, the employer must take them through the hiring process. They will undergo a number of tests and interviews in order to prove that they are qualified for the job position. If no one fits in the job position in question, the U.S employer will be able to hire a foreign worker.
However, there are some cases when a foreign employee is not more qualified than the U.S worker. So, even though the U.S worker is more capable of doing the job, the employer hires a 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, it is considered 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 making sure the H-1B visa program is not abused is that the foreign employee must work the position specified in the LCA. The employer must describe the work that the foreign employee will do when filing the LCA to the DOL. They must describe the job position and all duties.
The H-1B visa program will be considered as a fraud if the employee is not working in the specified job position or has different duties from the ones specified in the LCA. This applies even if the employee has to do more job duties than the LCA states too. The employee must at all times to work at the position that is specified in their contract as well as the LCA.
The foreign employee is not working in the location written on the LCA
The location of the work is also used to manipulate and abuse the H-1B visa program. The foreign employee must always work in the location that is specified before. If the employer changes the work location of the foreign employee or for a third party client, it will be considered as breaking the H-1B visa rules.
They must inform USCIS and submit documents that support why the foreign worker has to transfer to another location in order to make the transfer.
How to Prevent H-1B Visa Fraud and Abuse?
All frauds are well known to the USCIS. That is why they work to pass different policies to combat this behavior. They combine partnerships with other organizations and try to convince the employees to report such fraud or abuse. In order to decrease the H-1B visa fraud, the USCIS has put together a couple of mechanisms.
More rigorous and targeted site visits
USCIS conducts random site visits to the employers who hire with H-1B visas in order to detect any fraud in the process. But since the increase in fraud and abuse, they announced that they will increase and target these sites visas. This means that they will be more frequent and will target specified 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 are 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.
USCIS will indicate if the employer has done any fraud or other problems during these site visits. They will also interview the employees and ask them what are they doing during the day, where they work, and how much they earn. This is one of the ways to verify that the employer is complying with the H-1B visa rules.
Email address for reporting fraud
USCIS has designed a system to detect fraud or abuse by involving the employees in it. They have set up an email address [email protected] where they kindly accept tips for H-1B visa fraud. People can send emails if they suspect that some companies are engaged in fraud.
The message sent through this email must contain some necessary information such as:
- 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.
This information will be examined by the USCIS and they will decide if further investigation is necessary. Since they set up this email address in 2017, USCIS reported that they have received around 5,000 complaints from people in one year.
Even though they have built procedures to make the program easier to understand, USCIS is still 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 program is working and who is getting the jobs.
That is why USCIS announced that they will publish all data from the program after the 2018 fiscal year ends. They also want to create a searchable platform that will make the process easier for finding information. The information will be on how the H-1B visas are being used by U.S companies and foreign employees.
How Can H-1B Visa Workers Get Protection if They Report Fraud or Abuse?
USCIS wants to encourage H-1B workers to step up and report fraud from their employers. However, most of the time the foreign workers are too scared to report such fraud just because they think they will lose their H-1B visa status. Without the visa, they can no longer live and work in the U.S.
In order to protect the H-1B workers who report fraud, USCIS has designed a few rules. USCIS is ready to offer special treatment to H-1B visa workers who report any fraud or abuse from their employers. This special treatment will be granted to workers such as:
- 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.
Sometimes, 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 abuse or fraud from their employer.