Prepare for H-1B Audit

The United States Citizenship and Immigrations Services (USCIS) has recently announced that it would be conducting 25,000 on-site inspections of H-1B employers this fiscal year.

This tough enforcement measure is aimed at combating fraud in the H-1B program. Last year, the USCIS found fraud and other violations in one out of five H-1B petitions.

Among the findings of fraud were: failure to pay the beneficiary at least the prevailing wage for the job in the work location; working in another geographic location than that stated in the labor condition application; and not paying the beneficiary due to lack of work.

Many petitions were also found to be sham as the business that the petitioners claimed to have did not exist. Also, some diplomas and/or experience letters were fake or forged.

Site visits are handled by the Office of Fraud Detection and National Security. The agency was created in 2004 primarily to detect and combat immigration fraud. Its funding come from the fraud fee of $500 paid for initial H-1B petitions.

The Site Visit and Verification Program was started last July, according to USCIS Director Alejandro Mayorkas. The visits verify that the job and the job location exist and that the other terms specified in the petition, including the salary, have been complied with.

Site visits are generally unannounced. The officer goes to the employer’s principal place of business or at the H-1B work location. He/she will ask the signatory of the petition questions about the employer’s business, location and number of employees. The officer may ask for a copy of the company tax returns, wage report and other relevant documents. He/she may also ask about the job such as the duties of the H-1B employee, work location and salary.

The officer may tour the premises and request to interview the H-1B worker. He/she may ask the worker about his/her job duties, employment date, requirements for the position, and academic and employment background.

To help in its enforcement, the USCIS has hired Dan and Bradstreet to independently check the information submitted by the H-1B petitioner. The Internal Revenue Service (IRS) has also announced that it would conduct an audit of employers that are supposed to withhold taxes on income of non-resident aliens.

All H-1B petitioners should prepare themselves for a site visit. They should keep copies of all their H-1B petitions and attachments and be familiar with all the information stated in those petitions. If the facts have changed after the submission or approval of the petition, the employer should notify the USCIS by filing an amended petition. If the employer can no longer comply with the terms stated in the H-1B petition, the petition has to be withdrawn.