Immigration lawyer Stewart Rabinowitz of the Dallas-based firm Rabinowitz & Rabinowitz offers some perspective on how USCIS plans to prevent, detect, and address fraud within the H-1B visa program in 2010.
In September 2008, USCIS published a report entitled H-1B Benefit Fraud & Compliance Assessment of the H-1B visa program. As background, the H-1B classification permits a foreign national to work for a U.S. employer in a position deemed professional, and which requires at minimum a bachelor’s degree. Each H-1B employer must certify to the Department of Labor that the wage paid to the foreign national by the H-1B employer is the required wage (frequently the prevailing wage) in the area of intended employment, and must document the source of establishing wage offered, in addition to meeting many other technical requirements. USCIS collects substantial fees for filing H-1B petitions, including a $500.00 anti-fraud fee.The anti-fraud fee is currently $500.00. As of 2009, USCIS had collected approximately $90 million in anti-fraud fees.
The report, based on a sampling of 246 cases from a total population of 96,827 cases, revealed fraud in 33 cases of the sample, and technical violations in 18 cases.
In response to the report, U.S. Senator Charles E. Grassley (R-Iowa) wrote USCIS asking what plans the agency has to counter fraud and technical violations which the 2008 report revealed. “The USCIS response to Senator Grassley’s letter was in itself revealing,” says Stewart Rabinowitz, an immigration lawyer for the Dallas-based firm Rabinowitz and Rabinowitz, “In a public response to Senator Grassley’s letter, they stated that they’d be seeking greater evidence from petitioning H-1B employers that an H-1B employee will be performing at a site where that employer may place that worker, that USCIS will be expanding its site visit inspections of H-1B employers to approximately 25,000 (up from about 5,000 in 2009), and that USCIS will begin using open source commercial means to independently verify employer information.”
Rabinowitz can see the writing on the wall. “In this time of economic downturn, it is clear that USCIS will subject U.S. employers to greater scrutiny prior to approving an H-1B petition, requiring that even relatively simple H-1B cases become minutely well documented and thus become more expensive to prepare,” Rabinowitz asserts, “ H-1B employers should be prepared to document compliance with each of the requirements of the H-1B program, and with 25,000 inspections taking place, H-1B employers should expect a visit from USCIS agents during 2010.” But to what end? “This may result in a chilling effect, causing potential H-1B employers to not use the H-1B program, an outcome that may not benefit U.S.employers or U.S. workers in the long run. A U.S. employer who is unable to find required but scarce talent domestically and chooses to forego using the H-1B program to employ needed and available foreign talent may be less competitive globally as a consequence,” Rabinowitz concludes.
To learn more about Rabinowitz & Rabinowitz, P.C., call 1.972.233.6200 or visit Rabinowitzrabinowitz.com.