Heightened Focus on H-1B Employers

In addition to its I-9 audit activities, the Department of Homeland Security is stepping up its investigations and enforcement actions against employers suspected of immigration fraud. Employers in professions that use H-1B visa are a particular focus.

DHS is rapidly expanding its Fraud Detection and National Security unit and is planning to employ 650 officers in the U.S. and overseas this year. Initially created in 2004, the unit has a stated mission to detect, deter and combat immigration benefit fraud and to ensure immigration benefits are not granted to persons who threaten national security or public safety.

The Fraud Detection and National Security unit contacts employers directly, or sends immigration officers or contract personnel to visit work sites (usually without notice). Their goal is to gather the facts necessary to determine whether anyone has committed fraud while attempting to obtain immigration benefits

If unit investigators determine that fraud has been committed, they refer the case to Immigration and Customs Enforcement for possible formal criminal investigation. If ICE declines to open a criminal investigation, the fraud unit forwards its findings to the U.S. Citizenship and Immigration Service for adjudication, which could result in the denial or revocation of the underlying immigration petition or application

Even if ICE declines to open a criminal investigation, it may issue an I-9 audit notice. The fraud unit’s findings are entered into its data system so that the information may be tracked and so that known indicators of fraud can be compared against any new information resulting from other applications filed by the petitioner or beneficiary.

In September 2008, U.S. Citizenship and Immigration Service issued an H-1B benefit fraud and compliance assessment in which it concluded that employers meeting the following criteria are among the most likely to engage in fraud

• Has been in business less than 10 years
• Has less than $10 million in gross income
• Has 25 or fewer full-time employees
• Petitions for an H-1B visa for accounting, HR, sales, advertisement, art or business professionals, or for managers or computer professionals

If an H-1B employer meets these criteria, it runs a high risk for a visit from a fraud unit officer or contractor, whose findings may lead to immigration benefits denial, I-9 audits, criminal investigation and potentially even civil and criminal penalties.

The Department of Labor has also publicly emphasized the strength of its commitment to protecting the U.S. workforce. H-1B employers are required to maintain public access files, which DOL may audit at will. In the course of an audit, DOL may review I-9 files or payroll records and may also interview employees, which can lead to additional issues. In light of the current economic climate and increased focus on work-site enforcement, the number of audits conducted by DOL is also expected to increase. All H-1B employers should ensure that they are in compliance with their wage and hour and H-1B obligations.