Feds considering changes to H-1B application process

Feds considering changes to H-1B application process in wake of report

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USCIS weighs H-1B reforms after finding fraud, 'technical violations' in 21% of reviewed cases

By Patrick Thibodeau

October 10, 2008 (Computerworld) A report by the U.S. Citizenship and Immigration Services that found evidence of forged documents, fake degrees and shell companies being used in H-1B applications will likely lead to increased scrutiny of the visa petitions if the USCIS implements some of the steps it is now considering.

A USCIS spokesman said today that the agency is weighing a series of reforms to the H-1B application process, including the use of "independent open-source data" to obtain information about visa seekers or the companies that file the petitions on their behalf. For instance, USCIS officials could check petitioning companies against commercially available records to make sure that they are legitimate businesses.

The USCIS is also looking at implementing a risk assessment program for applications "based on objective criteria relating to fraud indicators," the spokesman said. That would enable the agency to give greater scrutiny to H-1B petitions that raise flags during the review process.

Other options under consideration include modifying the H-1B "evidentiary requirements" and revising the forms that employers use when filing applications, according to the USCIS spokesman.

The report, which was finalized in September and publicly released (download PDF) Wednesday by Sen. Chuck Grassley (R-Iowa), said that 21% of 246 H-1B applications reviewed by USCIS staffers contained either outright fraud or "technical violations" of federal laws and regulations. The findings mean that thousands of employers may be violating the rules, some willfully.

In addition to finding fake information in applications, the USCIS investigators discovered on visits to work sites that some employers weren't paying prevailing wages to H-1B holders. In other cases, the report said, companies had "benched" visa holders when work wasn't available for them, or had them doing different jobs than the ones that were listed on their H-1B applications.

Yesterday, Grassley followed up his release of the report by sending a letter to top USCIS officials. Among other questions, he asked whether the employers who were found to have violated the H-1B rules will "be held accountable or referred to the Department of Justice for prosecution?"

Grassley also voiced frustration over what he said were lengthy delays in producing the report, which was based on an examination of a random sample of the nearly 97,000 H-1B applications filed in late 2005 and early 2006. In addition, he disputed the report's classification of some of the problems found by the USCIS as technical violations. "Blatant disregard for the law is not a 'technical' violation," Grassley wrote.

In a statement on Wednesday, Grassley — who is an ardent H-1B critic — said that the USCIS report "validates the major flaws" in the visa program. "It's unacceptable," he added, "that these fraudulent activities are slipping through the cracks when there is so much legitimate demand for H-1B visas."

Government Study Finds 21% Of H-1B Applications Violate Rules

The government estimates that fraud, including below-market wages and filings by fake businesses, is present in 13,000 of the yearly H-1B petitions filed.

By Mary Hayes Weier
InformationWeek
October 20, 2008 04:40 PM


The U.S. government estimates that 21% of H-1B visa petitions are in violation of H-1B program rules -- ranging from technical violations to fraud -- based on the investigation of a representative sample.

A newly available report on the study, drafted by the Office of Fraud Detection and National Security, cites one of the most common violations as businesses that did not pay a "prevailing wage" to the H-1B beneficiary, meaning the going salary rate for a job in a specific market.

Other findings included nonexistent job locations, fraudulent and forged documents, and visa petitions (meaning applications) filed by nonexistent businesses. Companies typically apply for H-1B visas to hire professionals from India, Russia, and elsewhere to work on U.S. soil.

The report's estimates are based on a sample study of 246 cases, out of a total of 95,827 H-1B petitions, filed between October 2005 and March 2006. The sample cases included only those in which a business was looking to extend an existing H-1B visa for someone already in the United States, or hire someone under the H-1B program who came to the United States on a different visa. (The study excluded situations in which the visa beneficiary was still living abroad because of the complication of interviewing that person.)

Out of the 246 cases investigated, the government office determined that 51 cases, or 21%, were in violation of H-1B program rules. "When applying the overall violation rate of [21%] to the overall H-1B population, a total of approximately 20,000 petitions may have some type of fraud or technical violation," according to the report. Further extrapolation finds that 13,000 of those cases would represent acts of fraud, with the remaining 7,000 being less-severe technical violations, says the report.

Computer-related jobs represented 104 of the cases investigated. Among those, 27% -- or 28 cases -- were associated with fraud or technical violations. Other occupations in the cases included accounting, human resources, business analysts, sales, and advertising.

In 55% of the total 51 cases in which violations were present, site visits found that the visa recipient was not working or had never worked at the work site identified by the business filing the application.

In 27% of the cases showing violations, the employer wasn't paying a visa beneficiary the prevailing wage or was holding the person in a nonproductive status without pay, or with reduced pay, during periods of no work. Employers and visa beneficiaries admitted to this subpar pay during site visits, according to the report.

In some instances, employers or beneficiaries interviewed said that the worker's salary dropped below the prevailing wage because the employer had deducted H-1B application fees from the worker's salary. Filing fees typically total more than $2,000 per worker.

In 20% of the cases in violation, the government found faked academic degrees, forged signatures on documents, and documents that misrepresented H-1B eligibility. In 14% of cases, the business filing for visas didn't exist, couldn't support the number of employees claimed, or the employer never intended for the visa beneficiary to fill the job offered.

As a result of the report, the Benefit Fraud and Compliance Assessment Program, established in 2005 to evaluate the integrity of visa programs, has established a 21% baseline rate for technical violations and fraud in H-1B petitions.

In addition, the National Security and Records Verification Directorate is making "procedural changes" as a result of the study, to be "described in a forthcoming document."

Although the sample population was drawn for the purpose of a study, the Benefit Fraud and Compliance Program refers cases identified as fraud to Immigration and Customs Enforcement for consideration of formal criminal investigation and prosecution.

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