On February 11, Federal agents arrested eleven (11) individuals in seven (7) states on allegations that such individuals submitted false statements or documents in support of their H-1B visa petitions. The arrests came in connection with a U.S. Department of Justice (“DOJ”) investigation of several IT consulting companies, probing H-1B fraud. A January 22 indictment charges Vision Systems Group Inc., a New Jersey-based company, with visa fraud, mail fraud, wire fraud, money laundering and conspiracy. The indictment seeks $7.4 million in forfeitures against the Company.
The investigation focuses on IT consulting companies that sponsor H-1B workers in specialty occupations. It is alleged that Vision Systems filed H-1B petitions on behalf of workers abroad to fill existing IT vacancies in the United States. It is further alleged that said companies did not always have jobs available for these workers, thus placing them in non-pay status after they arrived in the United States. The indictment also alleges, in some cases, that foreign nationals were placed in jobs and locations not certified by the Department of Labor (“DOL”), thus possibly displacing qualified American workers and violating prevailing wage laws.
In connection with these arrests, USCIS announced that it is battling back against H-1B visa fraud to restore confidence and support in the H-1B program. Acting Deputy Director of USCIS, Michael Aytes stated, “visa fraud undermines the integrity of the immigration system and I’m proud that our officers have helped to ensure that the American people and our customers can continue to depend on a reliable system.”
As with any criminal case, a charge in an indictment is merely an accusation—not a finding of guilt.
Despite some abuses of the H-1B specialty worker program (like those alleged against Vision Systems Group), the H-1B specialty worker program has built-in safeguards to ensure that highly educated foreign professionals do not undercut the wages offered to U.S. workers. Employers must pay each H-1B professional a wage that is the higher of either (i) the typical wage in the region for that type of work (“the prevailing wage”), or (ii) what the employer actually pays existing employees with similar experience and duties. Moreover, companies that employ a high number of H-1B workers, known as “H-1B dependent”, are required to recruit within the U.S. to fill the position before they may hire an H-1B professional. They also must attest that they are not petitioning for an H-1B visa if the Company has laid-off or displaced a similarly situated U.S. worker. Employers who fail to comply with DOL regulations may be subject to investigation, civil and administrative penalties, payment of back wages, debarment from participating in future immigration programs and criminal penalties.
If you have any questions regarding the H-1B program, including the your company’s obligations for paying existing H-1B workers the requisite wage, maintaining H-1B Public Access Files, or what, if anything, your Company should do in the event of a layoff of U.S. workers, please do not hesitate to contact us. Additionally, if your Company is notified of a DOL audit or a Federal investigation by the DOJ, DOL or ICE, contact us for a prompt phone or in-person consultation.