Silicon Valley H-1B Employers Will Face Tougher Challenges in Light of Fraud Reports

Like most H-1B employers, Silicon Valley employers need to start over-documenting their H-1B petitions and increasing the material provided about the sponsoring employer, as well as about the employee and the proposed job. Recent reports of fraud in the H-1B program, as well as Senator Grassley's vocal proposals to tighten screening of H-1B employers have cast a cloud of fraud onto the H-1B program.

The cover article in the October 12, 2009 Business Week issue is called "America's High-Tech Sweat Shops: How U.S. companies may contribute unwittingly to the exploitation of foreign workers". This article highlights the various ways in which some H-1B employers have abused the visa system, and taken advantage of unknowing foreign nationals seeking work in the U.S. Fraud ranges from employers: charging potential H-1B workers exorbitant fees as high as $15,000 to submit visa applications; allowing potential H-1B workers to pay fees and obtain an H-1B visa only to come to the U.S. and find that the employer does not have a paying job for them; siphoning off H-1B employees' wages; failing to pay H-1B employees between contract jobs - also called "benching"; to employers claiming that an H-1B worker is employed in a low-wage metropolitan area so that a lower wage can be paid - but actually employing the H-1B worker in a higher wage area.

Unfortunately, the Business Week article is just one of several recent highlights of H-1B fraud. Last week Senator Grassley (R-Iowa) wrote a letter to the new head of the USCIS, Alejandro Mayorkas, pushing for tighter restrictions on H-1B employers. His letter referenced the USCIS' 2008 internal assessment of compliance in the H-1B program. Although the 2008 USCIS report showed a rate of error in H-1B applications of almost 20%, Senator Grassley characterized these errors as fraud, whereas only 13% were found to be fraud and 7% were considered to be technical errors. In his letter to Director Mayorkas, Grassley requested more information from petitioning employers to assure that work is waiting for H-1B employees and they will not be "benched".

Small employers, that are less than ten years old and have annaul gross income less than $10 million are already subject to closer scrutiny by the USCIS. These employers have already been submitting documentation in excess of what is required by the Federal Regulations, in order to substantiate the existence of their business.

Now all sponsoring employers, regardless of size and annual income, need to closely scrutinze their applications for accuracy and essentially "overdocument" their case. Although it goes without saying that employers want to submit accurate applications, they need to take the time to figure out exactly where an H-1B employee will be working throughout the duration of the requested work period, and make sure the proprosed job description will accurately describe the actual job duties. Employers need to go over each item in the Labor Condition Application as well as the USCIS I-129 petition.

Employers will also need to provide additional documentation to establish that they have an actual office, that they are actually conducting business, that they are paying their employees, and that they have a business need for a professional employee. Employers cannot simply rely on the application instructions in terms of what supporting documentation will be needed. Even a well-documented case could very well be subject to a Request for Evidence during the adjudication, or even be subject to an unannounced site visit.

H-1B Visas, Work Visas / by Michelle Gee