H-1B Abuse Policy Update from Trump’s USCIS

H-1B Abuse Policy Update from Trump’s USCIS

Combating H-1B Abuse:

H-1B abuse is on notice.  The H-1B visa program helps U.S. companies maintain competitive advantage by recruiting highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, the Trump Administration claims too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and opportunities as they import more foreign workers.

Protecting American workers by combating fraud in our employment-based immigration programs is a priority for Trump’s USCIS. USCIS continuously works to deter and detect fraud in all immigration programs and we are furthering our efforts by enhancing and increasing site visits, interviews, and investigations of petitioners who use the H-1B visa program. These efforts will help assist in the prosecution of program violators and ensure that American workers are not overlooked or replaced in the process.

Reporting Suspected H-1B Abuse

Trump Administration has established an email address dedicated to receiving information about suspected H-1B fraud or abuse. Anyone (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) can email [email protected] to submit tips, alleged violations, and other relevant information about potential H‑1B fraud or abuse. When submitting information to [email protected], please provide the following information in the email:

  • The name of the H-1B petitioning employer/company
  • The address of the employer/company or location of the H-1B worker(s), including the city and state
  • A description of the alleged violation, abuse, or suspected fraud
  • Your email address
  • Your name and phone number (optional)
  • Any other information that may be useful to investigate the alleged fraud or abuse

The Trump Administration encourages individuals to report allegations of employer fraud and abuse by submitting a Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division. The public may also contact U.S. Immigration and Customs Enforcement (ICE) by completing the HSI Tip Form.

H-1B Fraud and Abuse Indicators

Examples of H-1B abuse indicators may include:

  • The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
  • There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
  • The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
  • The H-1B worker has less experience than U.S. workers in similar positions in the same company.
  • The H-1B worker is not working in the intended location as certified on the LCA.

Protections for H-1B Workers Who Report Suspected Abuse

If a worker on the visa reports H-1B Abuse, immigration law may provide certain protections to these workers. If an H-1B worker:

  • applies to extend their H-1B status or change their nonimmigrant status,
  • indicates that they faced retaliatory action from their employer because they reported an LCA violation, and
  • lost or failed to maintain their H-1B status,

USCIS believes this situation is an instance of ‘‘extraordinary circumstances’’ as defined by sections 214.1(c)(4) and 248.1(b) of Title 8, Code of Federal Regulations. Normally, H‑1B workers are not eligible to extend or change their status if they have lost or failed to maintain their H-1B status. However, if they can demonstrate ‘‘extraordinary circumstances,’’ we may use our discretion to excuse this requirement on a case-by-case basis.

Expansion of Site Visits

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. We verify H-1B workers’ wages, job duties, and work locations during site visits. This action is not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

We seek to determine if workers are not being paid while in the United States as they wait for projects or work, a practice known as “benching” which violates U.S. immigration laws. We also conduct site visits in cases where there are suspicions of fraud or abuse and refer many of the cases to our counterparts at U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Starting this month, we will take a more targeted approach focusing on:

  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute);
  • Cases where we cannot validate the employer’s basic business information through commercially available data; and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted site visits will also help us determine whether H-1B-dependent employers who normally must meet H-1B recruitment attestation requirements are actually paying their workers the statutorily required salary to qualify for an exemption from these requirements. These site visits will assist in determining if these employers are evading their obligation to make a good faith effort to recruit U.S. workers and to not displace U.S. workers.

Targeted site visits will allow us to focus resources where H-1B abuse may be more likely to occur. We will also continue to make unannounced and random visits to all H-1B employers across the country, both before and after any petition is adjudicated.

Promoting Transparency

Trump administration declared that transparency about how the H-1B program is being used is vital to ensuring accountability for employers and improving policies and practices that protect American workers. After the H-1B cap filing season for fiscal year (FY) 2018 concludes, USCIS plans to publish a report on the H-1B visa petitions submitted for FY 2018 along with data about the petitions. USCIS also plans to create a web-based, searchable platform for the public to better understand how H-1B visas are being used.

Protect and Grow American Jobs Act Introduced in Congress

Protect and Grow American Jobs Act Introduced in Congress

Changes will be coming to the immigration system in the United States, of that we can be certain.  Rep. Issa introduced the Protect and Grow American Jobs Act on January 7, 2017. Donald Trump rode a wave of xenophoic energy all the way to the White House.  The most recent bill in Congress for the H-1B visas may be the changes that we see in 2017 and beyond.  Interestingly, for most employers with H-1B visa holders not much will change.

The Protect and Grow American Jobs Act proposed by Congress fall against companies dubbed H-1B dependent.  Typically, these companies are Indian IT firms, but also includes tech giant Facebook.  In the factual findings for the proposed Protect and Grow American Jobs Act (all laws have patriotic names), Congress finds that H-1B dependent employers have a loop hole allowing them to game the system.

The law changes the rules for H-1B dependent employers and requires them to pay their H-1B employees $100,000, with increases tied to the Consumer Price Index.

Will the Protect and Grow American Jobs Act work to stop H-1B abuses by Indian IT companies that comprise a very large proportion of all H-1B applications.  Perhaps this law will lower the raw numbers of applications and give legitimate H-1B hopefuls a better chance of winning the lottery.  First, the bill must become a law and it is a long ways from that because it was just introduced this past week.

Here’s the Full Text of the “Protect and Grow American Jobs Act”:


To amend the Immigration and Nationality Act to modify the definition of “exempt H–1B nonimmigrant”.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Protect and Grow American Jobs Act”.

SEC. 2. FINDINGS.

The Congress makes the following findings:

(1) The H–1B visa program allows businesses temporarily to hire highly skilled foreign workers with specialized knowledge, where a qualified worker in the United States cannot be found.

(2) In 1990, the Congress created the H–1B visa program to help ensure that access to qualified highly skilled professionals was not an obstacle to economic growth and job creation in the United States.

(3) The H–1B visa program was never intended to be used as a catalyst for laying off workers in the United States and replacing them with H–1B workers.

(4) The unintended consequences of the H–1B visa program enabled a small number of companies to hire large numbers of H–1B workers relative to their United States worker populations.

(5) In 1998, Congress passed new enforcement provisions to the H–1B program in order to prevent companies from displacing United States workers with lower-cost foreign professionals.

(6) The 1998 revisions defined a new class of H–1B dependent employers and established additional conditions on their business and hiring practices unless they paid sufficiently high wages.

(7) The 1998 revisions, however, did not index wage requirements to keep pace with wage growth, and, as a result, the strength of provisions designed to protect workers and employers committed to hiring United States workers was reduced significantly.

SEC. 3. PURPOSE.

The purpose of this Act is to close a loophole in the H–1B visa program by requiring H–1B dependent employers once again to pay sufficiently high wages to ensure the protection of the workforce in the United States and to remove other impediments to proper H–1B visa enforcement.

SEC. 4. EXEMPT H–1B NONIMMIGRANT DEFINED.

Section 212(n)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(3)(B)) is amended—

(1) by striking clause (i) and inserting the following:

“(i) the term ‘exempt H–1B nonimmigrant’ means an H–1B nonimmigrant who receives wages (including cash bonuses) at an annual rate equal to at least the greater of $100,000 or the applicable adjusted amount under clause (iii);”;

(2) in clause (ii), by striking the period at the end and inserting “; and”; and

(3) by adding at the end the following:

“(iii) the amount described in clause (i) (as of the last increase to such amount) shall be increased, effective for the third fiscal year that begins after the date of the enactment of this clause and for every third fiscal year thereafter, by the percentage (if any) by which the Consumer Price Index for the month of June preceding the date on which such increase takes effect exceeds the Consumer Price Index for the same month of the third preceding calendar year.”.

 

 

$20 Million Dollar H-1B Visa Scam Prosecuted

$20 Million Dollar H-1B Visa Scam Prosecuted

An Indian-American couple, Raju Kosuri, 44, and Smriti Jharia, 45, of Ashburn, Virginia has pleaded guilty to the charge of a $20 million dollar visa fraud.  Be warned of that when getting your work visa.  There are rip offs out there.  Many people dream of coming to America to live and work and some bad people take advantage of it and charge a great deal.

scammed more than 900 H-1B applications

According to the statement of facts filed by the Department of Justice with the plea agreement, Kosuri, Jharia and their co-conspirators fraudulently applied for more than 900 illegal immigration benefits under H-1B visa program.

Kosuri and Jharia also admitted to defrauding the Small Business Administration in connection with a scheme to obtain HUBZone certification for a business named EcomNets Federal Solutions.

Since 2008, and at much greater scale since 2011, Kosuri has built a staffing business that amounts to a visa-for-sale system, in violation of federal law, the Justice Department said.

Kosuri agreed to forfeit proceeds of his fraud schemes in the amount of USD 20,900,00, a media release said.

The visa fraud scheme also involves the forgery of numerous individuals’ signatures on visa petitions and exhibits without their knowledge.  Kosuri, Jharia with a consultant named Raimondo Piluso face a maximum penalty of 30 years in prison, if convicted. The other co-conspirators face a maximum penalty of 10 years in prison, if convicted.