Trump Administration Cracks Down on H1B Visa Fraud and Abuse

White House spokesperson Sean Spicer announcing H1B visa fraud crackdown

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Washington, DC – The White House on Monday (April 3) reiterated an announcement made earlier in the day by the US Department of Justice (DOJ) and followed by the US Citizenship and Immigration Services (USCIS) outlining steps to adopt multiple measures to further deter and detect H-1B visa fraud and abuse.

The USCIS announcement came as the DOJ cautioned employers petitioning for H-1B visas not to discriminate against US workers. The warning came on the day the federal government began accepting employers’ H-1B visa petitions for the next fiscal year, starting in October. The H-1B visa program allows companies in the United States to temporarily employ foreign workers in specialty occupations such as science and information technology.

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against US workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “US workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims,” Wheeler cautioned.

White House

Acknowledging that today (April 3) kicked off the application process for this year’s H1B visas, the White House spokesperson Sean Spicer told journalists at the daily briefing, “The President has spoken about the H1B visa program in the past. The White House acknowledges that there are issues with the program as it currently stands; however, there are several laws that are on the books that went unenforced in the previous administration.”

Referring to the DOJ notice, Spicer added, “As the Department of Justice made clear and was released this morning, the Trump administration will be enforcing laws protecting American workers from discriminating hiring practices.”

USCIS To Tighten Vigilance

The USCIS accepted the fact that the H-1B visa program helps US companies to recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country, but noted that many a times American workers, “who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.”

To adopt a more targeted approach and optimum use of its resources, the USCIS listed the following as foci of actions:

#Cases where USCIS cannot validate the employer’s basic business information through commercially available data;

#H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to US workers, as defined by statute); and

#Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Contrary to the rumor mongering and fear-inducing reports in Indian media, these actions are aimed at the decision of the US government to get tough and stringent in approval of H-1B visas this year.

The USCIS has a Congressional mandate to issue 65,000 H-1B visas in general category and another 20,000 for those applicants having higher education – masters and above – from US universities in the field of science, technology, engineering and mathematics.

Premium Processing on Hold

Earlier the USCIS on March 3, had announced that starting on April 3, 2017 (first day when USCIS will accept H-1B petitions for the new fiscal year), it will suspend premium processing service for all H-1B petitions. This announced suspension may last up to six months as per the USCIS’s statement.

This decision also created panic amongst the H1B visa holders, especially in the current political scenario according to immigration lawyers, but they argued that the decision to suspend premium processing is unrelated to Trump’s immigration policies.

Attorneys Calm the Nerves

Explaining the source of panic, immigration attorney Aparna Dave said, “In the last couple of years, there has been a rise in premium filings due to a huge backlog at the USCIS in processing H1B cases. H1B petitions are pending for over 10 months. In addition, uncertainties in the immigration arena under the current administration has also led to an increase in premium filings. There is a fear amongst H1B visa holders that laws may change and having an approved petition serves as a protection against any changes to the H1B law.”

Calming the frayed nerves, attorney Ramesh Khurana noted, “This is to be noted that this is not the first time that premium processing service for H-1B petitions has been suspended temporarily.” Explaining the Premium processing service, Khurana said it provides expedited processing for a specific list of petitions, including the H-1B petitions. Upon receipt of this request, USCIS guarantees 15 calendar day adjudication or USCIS refunds the processing fee, which is $1,225, he continued.

On the positive point Khurana added that, “this temporary suspension is not applicable to other eligible nonimmigrant classifications such as L-1, E2 and E3 and so forth.”

Fraud and Abuse hits the American Worker

According to the law, employers violate the Immigration and Nationality Act (INA) if they have a discriminatory hiring preference that favors H-1B visa holders over US workers and the DOJ anti-discrimination provision of the INA generally prohibits employers from discriminating against US workers because of their citizenship or national origin in hiring, firing and recruiting.

The division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA.

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