USCIS’s National Security and Records Verification Directorate (NSRV) and the Office of Fraud Detection and National Security (FDNS) released the H1B Benefit Fraud & Compliance Assessment. This report identifies fraud and technical violations in the H-1B visa program, and identifies areas of potential change in the future by USCIS.
The FDNS selected a random sample of 246 cases from a group of H1B petitions filed between October 1, 2005 and March 31, 2006.
The sample was limited to H1B cases with beneficiaries in the U.S., so that key issues of payment of wages, location of employment, and performance of stated job duties could be reviewed.
FDNS conducted initial reviews of the Labor Condition Applications (LCAs) and H1B petitions and conducted employer site visits. The site visits were intended to verify details about the employer, employee, and the nature of the employment.
246 H1B petitions were sampled, 51 petitions were confirmed to involve either fraud or technical violation’s. 13% involved fraud (33 cases) and 7% involved one or more technical violations (18 cases), for a combined violation rate of 20%.
Technical violations are errors, omissions, and failures to comply that are not within the fraud definition.
Technical violations included:
- Employers requiring H1B workers to pay filing fees that are required to be paid by the employer
- Deduction of other H1B-related fees from employees wages thereby reducing the wages of these H1B workers to below the prevailing wage.
- Failure by employers to pay beneficiaries at least the prevailing wage for the occupations within their particular geographic locations as listed on the LCAs,
- Not all work locations entered on the LCA
- Benching of H1B employees.
Fraud is defined as a willful misrepresentation, falsification, or omission of a material fact.
Fraud in LCAs and H1B petitions included:
- Nonexistent business locations
- false educational and/or experience documentation, and,
- H1B workers performing duties significantly different from those described in their H1B petitions.
Based on BFCA findings, the USCIS is making procedural changes to the H1B program that will be released in the future. We will post updates once they are released.
It is important to note the majority (80%) of H-1B petitions are violation free. In addition, technical violations can be overcome through legal guidance and establishing proper compliance systems.
We strongly encourage diligent compliance with LCA and H-1B regulations. We advise employers in developing and maintaining H-1B and LCA compliance plans.