H-1B Specialty Occupation Update: Time Again to File for New H-1B Visas and Government Scrutiny of Employer’s H-1B Usage

by Spilman Thomas & Battle, PLLC

The H-1B visa filing frenzy is upon us once again! Because of the chronic shortage of nonimmigrant visas for foreign workers in the specialty occupation category (H-1B visas), employers seeking to hire new H-1B workers must file their petitions on April 1, 2014 for work beginning October 1, 2014. The Immigration and Nationality Act provides for 65,000 H-1B visas each federal fiscal year, plus an additional 20,000 visas for individuals with advanced degrees (those who have earned a master’s degree from a U.S. college or university). In 2013, employers filed 124,000 H-1B visas on April 1, which required United States Citizenship and Immigration Services (“USCIS”) to hold a lottery to determine which visas would be granted. As the U.S. economy improves and in the absence of immigration reform, employers can expect the demand for these visas to continue to exceed the supply.

Employers should be cautious about substituting other types of visas for H-1B visas, however. On October 30, 2013, Immigration and Customs Enforcement (“ICE”) announced a record $34 million fine against a company for misusing the B-1 business visitor program when the company should have obtained H-1B visas for its employees. ICE also found that the company committed numerous I-9 employment eligibility verification violations. The company ultimately reached an agreement with the U.S. Attorney’s Office and the Department of Homeland Security to settle the case filed against it, and it was required to pay the $34 million fine in a lump sum after signing the agreement.

Among the violations committed, ICE found that the company submitted false “invitation letters” to U.S. Consular Officials misrepresenting the purpose of numerous employees’ travel to the U.S. The company directed the employees to deceive U.S. Consular Officials so they could obtain B-1 visas by having them avoid certain terminology when traveling through immigration check points and went so far as to provide scripted “do’s and don’ts” for use during travel through immigration check points. The company drafted contracts with its clients in order to conceal that the employees who would be performing the work were B-1 business visitors even though the work required the services of U.S. Citizens, permanent resident aliens or H-1B visa holders.

ICE also found that the company had committed numerous I-9 employment eligibility verification violations including failing to maintain I-9 records for many of its foreign workers, and failing to update and re-verify the employment authorization status of its foreign national employees.

Employers should remember that the H-1B visa category is highly regulated by both the U.S. Department of Labor and USCIS/ICE. Employers who have employees in the H-1B category should undertake periodic audits to ensure that the work performed by the employees and the work location are consistent with the representations made in the Labor Condition Application and the Petition for a Nonimmigrant Worker. Finally, we recommend that all employers undertake periodic internal audits of their Form I-9’s and their I-9 procedures.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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