In 2009 the USCIS’ Office of Fraud Detection and National Security (FDNS) commenced an assessment of the H-1B program nationwide. As part of this effort, agents of the FDNS are conducting unannounced site visits to H-1B employers’ principal places of business and work-site locations. During these visits, agents will seek to verify information contained in a specific H-1B petition. They may also ask to see paychecks, quarterly wage and tax reports and the employer’s copy of the Form I-129 and supporting documentation filed as part of the H-1B petition. Currently, agents are not reviewing public-access files. During the visit, agents will request an interview with the H-1B worker and will request to tour the work site.
Employers visited by an agent of this program should consider asking for identification. If the agent asks to see where the H-1B beneficiary works, the agent can be guided to the work site, but employers can refuse to take the agent through restricted areas. Employers also have the right to have an attorney on the phone while the agent asks any questions of the employer or the beneficiary. Employers should also ask to remain present while the H-1B employee is interviewed.
Due to the recency of the program, results of the audits and patterns of responsive action when negative information is uncovered by the FDNS has not yet been established. Penalties for violations of the H-1B visa program include back pay for individual workers; monetary penalties ranging from $1000 to $35,0000 and debarment from the H-1B program. Factors used by the government in determining penalties, include violations history, number of workers affected, good faith compliance efforts, and the extent to which an employer received a financial gain due to noncompliance
Employer Action Steps
1. Alert appropriate personnel to the possibility of an FDNS Audit. Provide personnel with instructions as to how to handle the situation when it arises.
2. Audit Labor Condition Application Files to ensure H-1B worker wages and work locations are in accordance LCA Determinations.