News & Information

LABOR & EMPLOYMENT LAW — 10/24/08

H1-B visa fraud found, according to USCIS report

A report released October 8, 2008, by US Citizenship and Immigration Services (USCIS) found evidence that the H1-B visa program is fraught with fraudulent activity, ranging from forged documents, "shell" companies providing non-existent addresses and beneficiaries misrepresenting their H1-B status. USCIS is the service and benefits bureau of the Department of Homeland Security.

The report, released to members of the Senate Judiciary Committee, indicates that violations are so commonplace that one in five visas are affected by fraud or a "technical" violation. The sample consisted of 246 cases from a total of 96,827 approved, denied or pending petitions filed between October 1, 2005 and March 31, 2006. The overwhelming majority of petitions in the sample were filed on behalf of beneficiaries who already held H1-B visas. 13.4 percent or 33 petitions filed on behalf of employers for H1-B visas were fraudulent. 7.3 percent or 18 petition had technical violations. Other instances of abuses included employers not pay prevailing wages or "benching" employees when there was not work. Media reports indicate that USCIS' 15-page report is the first time the bureau has documented the problems of the visa program. Have a 95 percent confidence limit in their findings, the reports authors wrote that "[g]iven the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document." The USCIS report can be found at: http://grassley.senate.gov/private/upload/100820081-3.pdf.

"This report validates the major flaws in the H-1B visa program that we have been talking about," said Senator Chuck Grassley (R-Iowa), ranking minority member of the Finance Committee. "It's unacceptable that these fraudulent activities are slipping through the cracks when there is so much legitimate demand for H-1B visas. Until we make a conscious effort to close the loopholes, we're going to see continued abuse where people coming to this country on H-1B visas are working at laundromats. This report is proof that reform must come sooner rather than later. The program ought to operate the way Congress intended so qualified high-tech American workers aren't left behind."

Grassley has led the effort to reform the H-1B visa program. He introduced a comprehensive H-1B and L-1 visa reform bill last year with Senator Dick Durbin (D-Ill) that would give priority to American workers and crack down on employers who deprive qualified Americans of highly-skilled jobs. He has also asked questions of both American and foreign based companies about their use of the H-1B visa program.

H1-B visas are given to US companies seeking to hire nonimmigrant aliens in specialty occupations of distinguished merit and ability when such workers are in limited quantities in the United States. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology and business specialties, etc). There is an annual cap on H-1B visas of 65,000 workers per fiscal year. The first 20,000 H-1B workers who have a US master's degree or higher are exempt from the cap. USCIS conducted two random selections after receiving approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008), first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions for the 65,000 cap.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

Visit our News Library to read more news stories.