Small companies petitioning for foreign workers face a higher scrutiny from USCIS, and thus should ensure that every aspect of their H-1B Petition is carefully reviewed and prepared by a competent immigration attorney. The consequences of unintended inconsistencies could be a delay in bringing required talent on board the company, or a denial of the H-1B petition and losing the worker entirely.
According to the recent May 18, 2012 release of confidentail internal USCIS guidance, USCIS has been instructed to target small businesses or new companies who want to hire foreign workers for fraud investigations. According to a USCIS internal memo released May 18, 2012, USCIS should presume fraud when two of the following conditions exist:
1. Petitioning companies with a gross annual income of less than $10 million;
2. Petitioning companies which employ less than 25 employees;
3. Petitioning companies that were established within the last 10 years.
When an immigration officer initially handling the petition finds two or more of the above conditions exist, then the officer is instructed to further review the H-1B filing for the following:
1. presence of fraudulent information relating to the Petitioning company or sponsored foreign worker, and/or any forged documentation;
3. inconsistent or otherwise questionable evidence regarding the proposed job duties and/or the foreign worker's qualifications to perform those job duties. In other words, the actual job duties are significantly different from the job position listed on the Labor Condition Application (LCA);
work experience letters without signatures; missing addresses and/or telephone numbers for the company; required skills, age or education discrepancies or mismatches.
When the above conditions are met, the immigration officer should refer the H-1B case to an immigration fraud unit (CFDO) for further scrutiny to rule out fraud in the petitioning process.
Moreover, the immigration officer initially handling the case is also instructed to review the filing not only for fraud, but for technical violations, including whether:
1. the physical job location is not listed on the Form I-129 Petition and/or LCA;
2. the beneficiary is not receiving the prevailing wages as listed on the LCA (salary discrepancies or mismatches);
3. any misrepresentation regarding the Beneficiary's current or prior immigration status (passport, I-94 or visa discrepancies);
4. any evidence that the Beneficiary paid the ACWIA filing fee associated with the H-1B filing fee;
5. any conflicting information about the business or its operations;
6. the facility would not be appropriate for the type of work to be performed ( for example, Petitioner claims to have 100 employees and the worksite is zoned for a residential apartment);
7. the job offered is inconsistent with the normal activities of the business.
Petitioning employers are advised to be diligent when preparing and submitting H-1B petitions to USCIS to ensure as much as possible that they obtain needed foreign talent.
According to the recent May 18, 2012 release of confidentail internal USCIS guidance, USCIS has been instructed to target small businesses or new companies who want to hire foreign workers for fraud investigations. According to a USCIS internal memo released May 18, 2012, USCIS should presume fraud when two of the following conditions exist:
1. Petitioning companies with a gross annual income of less than $10 million;
2. Petitioning companies which employ less than 25 employees;
3. Petitioning companies that were established within the last 10 years.
When an immigration officer initially handling the petition finds two or more of the above conditions exist, then the officer is instructed to further review the H-1B filing for the following:
1. presence of fraudulent information relating to the Petitioning company or sponsored foreign worker, and/or any forged documentation;
2. reported business was non-existent, suggested by a review of independent sources that reveal fictitious or inconsistent addresses in the petition, a questionable organizational chart is present in the record, there are photos of the purported business in a staged setting, there is evidence in the H-1B filing or otherwise uncovered that point to business zoning inconsistencies, or the Petitioning
companys website contains information inconsistent with the information in the H-1B petition; or3. inconsistent or otherwise questionable evidence regarding the proposed job duties and/or the foreign worker's qualifications to perform those job duties. In other words, the actual job duties are significantly different from the job position listed on the Labor Condition Application (LCA);
work experience letters without signatures; missing addresses and/or telephone numbers for the company; required skills, age or education discrepancies or mismatches.
When the above conditions are met, the immigration officer should refer the H-1B case to an immigration fraud unit (CFDO) for further scrutiny to rule out fraud in the petitioning process.
Moreover, the immigration officer initially handling the case is also instructed to review the filing not only for fraud, but for technical violations, including whether:
1. the physical job location is not listed on the Form I-129 Petition and/or LCA;
2. the beneficiary is not receiving the prevailing wages as listed on the LCA (salary discrepancies or mismatches);
3. any misrepresentation regarding the Beneficiary's current or prior immigration status (passport, I-94 or visa discrepancies);
4. any evidence that the Beneficiary paid the ACWIA filing fee associated with the H-1B filing fee;
5. any conflicting information about the business or its operations;
6. the facility would not be appropriate for the type of work to be performed ( for example, Petitioner claims to have 100 employees and the worksite is zoned for a residential apartment);
7. the job offered is inconsistent with the normal activities of the business.
Petitioning employers are advised to be diligent when preparing and submitting H-1B petitions to USCIS to ensure as much as possible that they obtain needed foreign talent.
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