New Initiative Announced to Combat H-1B Visa Fraud

U.S. Citizenship and Immigration Services (USCIS) announced this morning additional measures to home in on identifying and deterring fraud and abuse in the H-1B visa program. Citing “ignored or unfairly disadvantaged” American workers who lose out on job opportunities to foreign nationals, USCIS established an e-mail tip line for Americans and H-1B visa holders to report suspected violations. The agency additionally announced an enhanced approach to site visits where H-1B petitioners and their employees work, with a redoubled focus on H-1B-dependent employers and petitioners with off-site H-1B employees, asserting that such sites are more likely to foster fraud. (As Section 214(c)(12) of the Immigration and Nationality Act (INA) stipulates, employers petitioning for H-1B nonimmigrant status on behalf of an alien worker as well as those seeking approval for an alien worker already in H-1B nonimmigrant status to change employers pay a separate $500 Fraud Prevention and Detection Fee as part of their H-1B applications. These fees underwrite USCIS site visits.) USCIS added that such targeted, unannounced site visits, which were slated to begin today, amount to efforts to ensure compliance among employers, and not to take administrative or criminal action against nonimmigrant employees.
The timing of this announcement is noteworthy, as the annual filing period for cap-subject H-1B petitions began today. It’s widely expected that USCIS will exceed the number of visas available – which is statutorily authorized at 65,000 annually, plus an additional 20,000 per year for H-1B beneficiaries with at least a master’s degree from a U.S. university – within the next four to five business days. When the cap is reached, USCIS will make a public announcement, and thereafter conduct its two-step, computer-generated lottery.

The fraud initiative comes on the heels of additional alterations to H-1B visa processing and adjudication. In early March, USCIS announced a temporary suspension of premium processing for all H-1B petitions this year. And just last Friday, the agency rescinded a long-standing policy on adjudicating H-1B petitions for computer programmers. In a memorandum circulated over the weekend, USCIS stipulated that, effective immediately, computer programmer will no longer automatically be considered a specialty occupation, reasoning that “the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals … is not sufficient to establish the position as a specialty occupation. ”When this policy is translated into practice, an increased number of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), particularly for petitions for entry-level positions, will likely result. Given the timing of the policy change – effective immediately and thus applying to petitions already filed – it would hardly be a surprise if litigation challenging it ensues.

It’s worth recalling the larger context in which these announcements and changes have occurred. Even prior to his election, President Trump signaled his intention to target fraud and abuse in high-skilled visa categories like the H-1B, and in January, an unsigned (and as of yet still unconfirmed) draft executive order was leaked that cited such ambiguous changes to the H-1B visa program as “increased efforts to prevent harm caused to American workers.” Anchored in this context, the past few days’ developments seem to represent a concrete first step the Trump administration is taking to such ends. 

This is a developing story, and as more information becomes available, updates will be published on our news section.

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