USCIS memo created concerns for H-1B beneficiaries and employers

The January 8, 2010 U.S. Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service – INS) issued a memo on the subject of H1b “employer-employee” relationships relating to H-1B visa application and process. This created uncertainty for many H1B beneficiaries and U.S. employers.

How does H-1B process work?

Immigration and Nationality Act has criteria for qualifications of H-1B nonimmigrant foreign national.

The U.S. Department of Labor must first determine that the petitioning U.S. employer qualifies to submit an application. The Secretary of Labor determines and certifies to the Attorney General that the U.S. employer has filed with the Secretary an application. Then, H-1B visa is issued if all conditions of the petitioner meet the requirements.

Who monitors H-1B violations?

The U.S. Department of Homeland Security’s (DHS) Document Fraud and National Security (DFNS) monitors violations of H-1B visa and other fraudulent activities by immigrants who want to stay and work in the United States.

What are the major H-1B visa violations that you and U.S. employer should avoid?

Here are some of the major violations of H-1B visa applications:

• Beneficiary non-U.S. national worked at a site other than those listed in H-1B petition.
• Beneficiary (foreign national) did not get paid for the work.
• Reporting fake working site address.
• Beneficiary worked for jobs that are not listed in H1B petition.
• Foreign national started working for U.S. employer before filing H-1B petition.

Companies that are subject to intensive scrutiny

DFNS puts more emphasis on U.S. employers that are more likely to violate H-1B visa requirements. These companies that:

• have been in business less than 10 years
• employ less than 25 employees
• earn less than $10 million

Source: Global Immigration Partners, Inc.