Increased Worksite Enforcement and Audits of H-1B (and L-1) Petitions
The Office of Inspector General (OIG) conducted an audit of the H-1B program and determined that USCIS employer site visits were being conducted in a sparse and inefficient manner. The purpose of these visits is to determine if the foreign national is working at the jobsite indicated in the petition, if the salary stated in the petition is being paid, and if the job duties are accurately stated. The OIG made several recommendations to USCIS to improve their policing efforts. As a result, USCIS is likely to request more funds from Congress to increase its capacity to ensure the integrity of the H-1B program through targeted site visits.
The report acknowledged that USCIS approves about 330,000 H-1B petitions per year, with roughly 680,000 H-1B holders present in the country in a given year. While USCIS conducts targeted and random site visits to the employers of these beneficiaries, the OIG reported that employer site visits were both limited in their application (7,200 visits per year) and shallow in their individual thoroughness. USCIS does not always take action after negative site visits, and 81 percent of revocations are based on the easiest reason: the qualifying relationship does not exist between the H-1B employer and the beneficiary. Furthermore, the agency does not properly train its officers and cannot retain the good ones, nor does it track its costs, success, or efficiency. The OIG concluded that USCIS permits noncompliance – including fraud – to perpetuate the H-1B program.
The OIG recommended that USCIS develop a process to accurately track the visits, procedures, costs, and results of its compliance effort, and use the data to establish performance measures. USCIS also should reevaluate how it can better allocate its resources to site visits, and develop a comprehensive strategy to prioritize fraudulent offenders. USCIS concurred with these recommendations, and is hoping to revamp H-1B enforcement measures by the end of 2018.
Employers should be prepared for increased site visits. Random site visits will likely entail a confirmation of the employer’s location, the actual presence of the beneficiary, the job duties performed, and the salary provided. For that reason, the job duties on the petition should not only be as accurate as possible, but well known by both the employer and the beneficiary. Targeted visits also may be aimed at instances where the employer’s basic business information cannot be verified through USCIS’s private contractor as well as those employers with very high ratios of H-1B workers and on staffing or consulting companies that place workers at other companies in order to supplement that company’s workforce or to provide consulting services. Employers who outsource their workers to third party worksites should make especially sure they have properly documented the beneficiary’s schedule in the submitted itinerary, and that the employer-employee relationship is strong. Of course, all employers should ensure their I-9 records are in order at all times.