H-1B Cap Reached; New Program Targets H-1B Visa Fraud

Apr 10 2017 - Hiring - Gail Cecchettini Whaley

H-1B visa fraud cap

The USCIS and Department of Justice will target H-1B visa fraud.

Last Friday, the U.S. Citizenship and Immigration Services (USCIS) said it has hit the congressionally mandated cap on H-1B visa petitions for fiscal year 2018, and also received a sufficient number of H-1B petitions to meet the 20,000 beneficiaries cap under the U.S. advanced degree exemption. The filing period opened on April 3.

The USCIS will continue to accept and process petitions that are otherwise exempt from the cap. However, remember that the USCIS suspended premium processing for up to six months for all H-1B petitions, including cap-exempt petitions.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2018H-1B cap.

The USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

New Program Aims to Combat H-1B Visa Fraud

Last week, the USCIS also announced that it has taken new measures to deter and detect H-1B visa fraud and abuse. The USCIS will continue random and unannounced site visits nationwide to H-1B petitioners and the worksites of H-1B employees but will now take a “more targeted approach.” The site visits are intended to identify employers who are abusing the system.

At the same time, the Justice Department also issued a press release cautioning employers seeking H-1B visas to not discriminate against U.S. workers. “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division.

According to the USCIS, the H-1B visa program should be used to help U.S. Companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. However, the USCIS is concerned about abuse of the program. “[P]rotecting American workers by combating fraud in our employment-based immigration programs is a priority.”

The USCIS will focus on:

  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

According to the USCIS, targeted site visits focus resources where fraud and abuse of the H-1B program may be more likely to occur, and allow the USCIS to determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.

You can find more information about the new H-1B visa fraud and abuse program here.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read more on how to comply with immigration and naturalization laws and how to avoid related liabilities in I-9 Form: Verifying Eligibility in the HR Library. Not a member? Learn more about what HRCalifornia can do for you.

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