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Government to 'Take a More Targeted Approach' to Seek, Eliminate H-1B Visa Fraud

USCIS said it will "take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees."
Image: A segment of a US visa.
A segment of a US visa.Getty Images

U.S. Citizenship and Immigration Services (USCIS) said Monday it was stepping up efforts to ferret out fraud in a visa program that grants highly-skilled foreign workers jobs in the United States.

The Justice Department also warned employers petitioning for H-1B visas not to discriminate against U.S. workers.

Both announcements came as the federal government began accepting H-1B visa applications for the 2018 fiscal year, which runs from October to next September.

“The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country,” the USCIS statement reads. “Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”

William Stock, an immigration lawyer from Philadelphia and president of the American Immigration Lawyers Association, told NBC News the announcements signal that the Justice Department will prioritize prosecutions in the area of immigration.

“We are seeing the Department of Justice and the immigration service use their public communications to try and emphasize the possibility of violations of the program, not the positive uses of the program,” Stock said.

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The USCIS said it will focus its site visits on cases where an employer’s basic business information cannot be validated through commercially available data. It will also target companies with a high ratio of H-1B-to-U.S. employees and employers that petition for H-1B workers who will work off-site, according to the statement.

“Those three ingredients mean they are prioritizing going after the IT consulting community, particularly smaller IT consulting companies,” Stock said.

USCIS has done random site visits since 2009 to identify employers who abuse the system, the statement reads. It also announced Monday that it had set up a dedicated email address to report H-1B fraud.

Created in 1990, the H-1B program allows U.S. companies to sponsor non-immigrant visas to temporarily employ foreign workers with bachelor's degrees in specialty fields like engineering, computer programming, and science. India and China, in that order, are the top two countries from which H-1B recipients hail.

Supporters argue that the program brings in overseas talent to fill a job gap, but critics say it promotes outsourcing and gives away American positions to lower-paid workers.

In his inaugural speech, President Donald Trump pledged to bring back lost jobs and "rebuild our country with American hands and American labor."

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said acting assistant attorney general Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

USCIS also issued a guidance memo Friday on computer positions related to the H-1B. The document says that being employed as a computer programmer who uses IT skills and knowledge is insufficient to show that it is a specialty job. Some computer programmers need only a two-year associate’s degree, but an H-1B requires at least a bachelor’s or the equivalent.

“The USCIS is in part responsible for policing to make sure that if the employer is offering a wage that is competitive with non-bachelor’s-degree-holding IT workers, that that person doesn’t get an H-1B,” Stock said.

In recent months, lawmakers have introduced a number of bills in Congress to overhaul the H-1B. U.S immigration authorities have also put the brakes on a program allowing applicants to pay extra to request faster approval to work in the U.S.

Some experts say the temporary suspension is to help clear a backlog of pending cases, although some worried this signaled a step toward ending the H-1B program altogether.

The government sets an annual cap of 85,000 H-1B visas, which includes 20,000 for foreign workers with U.S. advanced degrees. In 2016, the cap was reached in just one week, for the fourth consecutive year, with more than 200,000 H-1B applications filed.

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A lottery is used to decide who receives the visas, which are good at the sponsoring company for up to three years. H-1Bs can be extended for an additional three years.

In fiscal year 2014, citizens of India made up 70 percent of the 316,000 H-1B petitions approved by the U.S. Citizenship and Immigration Services, according to the Migration Policy Institute.

The window for applications for the 2018 fiscal year opened on Monday.

The macro issue, Stock said, is that all H-1B employers will likely face compliance reviews as the Justice Department explores opportunities to bring criminal charges for visa fraud.

“Employers who rely on H-1Bs exclusively are really going to have to carefully look at their business practices to make sure they’re in compliance,” Stock said.

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