FDNS Releases 2013 Memorandum on H1B Fraud Detection

A Freedom of Information ACT (FOIA) request has led to the release of an internal, confidential memorandum from the U.S. Citizenship and Immigration Services (USCIS) Fraud Detection and National Security Directorate (FDNS). The memo, dated June 3, 2013, revises USCIS policies related to detecting and eliminating fraud within the H1B program. Some of the information contained in the memo is especially relevant to H1B employers, as it provides insight into the in-person site visits conducted by USCIS representatives.

Background: Fraud Assessment Report of 2008

Many of the changes in H1B adjudications and oversight are the result of an FDNS report issued in September 2008. Since that time, the USCIS has introduced a series of initiatives to detect and deter irregularities and noncompliance within the H1B program. The June 2013 memorandum makes it clear that the USCIS, through the FDNS, intends to continue the programs and efforts in this area.

In-Person Site Visits

One of the most visible anti-fraud initiatives, which began in December 2011, is what the USCIS calls the Administrative Site Visit and Verification Program (ASVVP). This is the source of what is commonly referred to as a site visit. These in-person work location inspections are used to verify that H1B employees are working under the terms of their respective H1B petitions. That is, an inspector will visit the work location listed on the H1B petition to confirm various factors, such as that the employee is working at the location listed on the petition, and that s/he is being paid the required wage.

Looking for Evidence of Noncompliance / Fraud

This internal memo confirms that the USCIS does not use these site visits to target companies suspected of fraud. But, in addition to looking for evidence of noncompliance, the information obtained during the in-person visits can be used to identify companies that may be engaged in fraudulent activities. During a site visit, the inspector observes the worksite location to determine if it is consistent with the information in the H1B petition. The inspector also seeks out the employer and the H1B employee for questioning. The MurthyDotCom NewsBriefs, FDNS Investigators Contacting End Clients to Verify Information (16.Aug.2013) and USCIS Site Visits, What to Expect (31.Dec.2012) provide additional information on some of the issues addressed during site visits.

Need for H1B Amendment Before Work Location Change

The USCIS memo indicates that, from the inception of the ASVVP program in December 2011, through June 2013, when the memo was drafted, over 57,000 ASVVP site visits had been conducted. While these site visits included both religious worker and H1B cases, it is clear that H1B sponsors must be prepared for the possibility of such a visit, which means that employers must ensure they are complying with the applicable regulations.

One of the more likely problems to be uncovered during a site visit is the lack of an H1B amendment related to a change of job location for an H1B worker. This is an especially important matter in the context of IT consulting, where workers are frequently placed at third-party worksites. Even if the employer files an amended LCA with the U.S. Department of Labor, absent an H1B amendment, the USCIS remains unaware of the relocation. Thus, the FDNS inspector appears at the (former) worksite location that is listed in the H1B petition. This can lead to serious problems, including a potential revocation of the H1B petition. A number of articles have been published on MurthyDotCom, such as New Year Reminders for Employers: Part 1 of 2 (26.Dec.2013), cautioning employers to consider the need for filing an H1B amendment in these circumstances.

VIBE Used to Verify Employer Information

One of the other key tools used by the USCIS to verify information provided in H1B petitions is known as the Validation Instrument for Business Enterprises (VIBE). Since September 2009, this web-based system has been used as part of the H1B adjudication process to verify information on the existence and/or financial viability of H1B petitioning employers. VIBE relies on information from Dun and Bradstreet (D&B), meaning that H1B petitioners should verify that the company information on record with D&B is accurate. More information on VIBE and how a company can access and update the information in D&B is available on the USCIS WebSite.

Other Anti-Fraud Initiatives

The other two main anti-fraud initiatives discussed in the memo are more internal in nature. The USCIS has created an enhanced, consolidated Fraud Detection and National Security Data System (FDNS-DS). This system allows for review of information on a particular employer or beneficiary in a unified manner. The system was enhanced to include a broader range of data from other USCIS sources, so that the USCIS can better identify and track potential fraud. Training of officers in the area of identifying, detecting, and deterring fraud has also been standardized by the USCIS.

USCIS Issues RFE or NOID / NOIR for Inconsistencies

These initiatives are sometimes visible to the H1B petitioning employer and/or H1B worker in the form of a request for evidence (RFE), notice of intent to revoke / deny (NOIR/D), or denial. There are times when these communications reference prior filings and inconsistencies, making it clear that the USCIS has a grasp on a picture larger than that provided by the single H1B petition at-hand. There are also employers who appear to have been identified as potential fraud risks, as their filings tend to be closely scrutinized.

Conclusion

Serious about integrity within the H1B program, the USCIS has improved its ability to identify fraud and other irregularities over time. An employer who feels the need to cut corners is likely to wind up paying a heavy price in the end. Companies, therefore, should take the steps needed to remain informed as to their legal obligations, and in compliance with the H1B regulations. Companies seeking help with H1B issues will be pleased to learn that the Murthy Law Firm is now offering more-competitive rates to make it even easier to retain the services of a team of attorneys who truly know immigration matters!

Copyright © 2014, MURTHY LAW FIRM. All Rights Reserved