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Agency intends to conduct more targeted audits, keep better track of results
The federal agency charged with combatting fraud and abuse involving immigration visas for H-1B and L-1 workers plans to step up targeted inspections and site visits overall.
The move is a response to suggestions from the Department of Homeland Security Office of Inspector General, which concluded that the antifraud and abuse program managed by U.S. Citizenship and Immigration Services (USCIS) "provides minimal assurance that H-1B visa participants are compliant and not engaged in fraudulent activity."
The Inspector General's audit of the USCIS Administrative Site Visit and Verification Program (ASVVP) and the agency's separate channels of targeted inspections found several operational shortcomings.
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"The report concluded that USCIS' ASVVP program had multiple shortfalls related to the limited number of site visits conducted, a lack of training, and a failure by inspectors to take proper action in instances where noncompliance is detected," said Elizabeth Stern, a partner in Mayer Brown's Washington, D.C., office and leader of the firm's Global Mobility & Migration practice. "The report further outlined a lack of agency tracking of [targeted site] visits, associated costs and outcomes."
The audit also found that USCIS could do more to:
More Site Visits Planned for FY 2018
According to the report, USCIS is able to approve more than 330,000 new, extended or amended H-1B visa petitions annually but only conducted an average of 7,200 ASVVP site visits during fiscal years (FYs) 2014-2016, or 3 percent of all approved H-1B petitions during that time. The number of visits fell short of the agency's goal to complete 9,000 inspections in FY 2014 and 10,000 in FY 2016. These visits are random, and employer and worker participation is voluntary.
While onsite, officers may verify H-1B petition information and supporting documents, verify the organization exists, visit the employee's work area, take photographs, and interview staff to confirm information about the visa holder's job. Each site visit focuses on one petition and employee.
While USCIS uses targeted site visits to respond to indications of fraud, it does not have a reliable system to track these actions, the audit concluded. During FYs 2014-2016 the agency conducted at least 577 targeted site visits, but that total is incomplete because the agency does not systematically track investigations begun from referrals made from USCIS benefits adjudicators, law enforcement agencies or the public.
Tracy Renaud, former acting deputy director for USCIS, said that the agency plans to conduct more site visits in FY 2018, depending on the availability of additional resources, personnel and infrastructure. The FY 2018 goal for site visits would be doubled from 10,000 to 20,000 with the addition of a revamped targeted site visit program that started as a pilot in April 2017. USCIS considers the new program to be a hybrid of random compliance visits and for-cause visits based on detected fraud.
As a result of President Donald Trump's executive order signed Jan. 25, the agency has recently implemented plans to increase targeted site visits to focus on cases in which:
Stern advised that employers with H-1B and L-1 workers ensure that all files and work assignments for those workers are in perfect order. "It's a good time to do a sampling audit or overall audit of H-1B and L-1 files to confirm that the workers are still performing the job that was stated in their original petitions, and that they are still earning the same wage, or more, and that the position is eligible for H-1B or L-1 status."
Employers should file an amended petition with USCIS if any material changes are found during an audit. "If you find it, you fix it; that's the basis of any good-faith compliance," Stern said.
She added that it is also important to prepare H-1B and L-1 workers so they are not surprised during a site visit. "Employees need to be able to explain to an auditor why their knowledge and experience is sufficient to justify being in the job," she said.
Managers and administrative staff at each facility that may be audited also need to be prepared. Remote worksites separate from the headquarters office typically won't have the same legal, HR and global mobility experts on hand who are experienced in dealing with government audits.
Additional Areas to Improve
USCIS was also asked to enhance its random sampling procedures to focus more on recurring violators.
According to the Inspector General report, USCIS adjudicators do not consistently consider information about petitioning employers beyond what is provided on the application—including whether the employer was found to be noncompliant during a previous ASVVP site visit—when approving or denying H-1B visa requests.
For example, USCIS conducted site visits on 1 percent to 2 percent of the approved petitions submitted by two information technology consulting firms over the past three years. These relatively few site visits yielded a violation rate of 14 percent to 16 percent, according to the agency. Yet USCIS approved between 31,000 and 57,000 petitions from these two companies despite the pattern of violations.
"By failing to take more proactive steps to identify petitioners with prior unverified site visit results and ensure that subsequent petitions submitted by these petitioners are not approved, USCIS permits noncompliance—including fraud—to perpetuate in the H-1B program," the audit concluded.
The Inspector General recommended that USCIS improve its information-sharing relationships with other agencies such as the departments of State and Labor, and Immigration and Customs Enforcement to better identify high-risk employers for targeted site visits.
Renaud said that USCIS concurs with the report's findings and has started to address the recommendations. She also pointed out that the Inspector General wrote positively about the agency's creation in April of an e-mail address dedicated to receiving information about suspected H-1B visa fraud or abuse.
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