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Under the H-1B visa program, an employer may employ foreign workers in occupations requiring theoretical or technical expertise in a specialized field. An H-1B visa holder is issued a Social Security number (SSN) but is only authorized to work for his or her sponsoring employer.

In response to a recent Department of Homeland Security (DHS) study and criminal investigations launched by the Department of Justice (DOJ) concerning visa fraud, the Social Security Administration’s Office of the Inspector General (OIG) set out to assess whether H-1B workers were properly using their SSNs. In its September 2011 Audit Report, H-1B Workers' Use of Social Security Numbers, the OIG estimated that 18% of H-1B workers assigned a SSN in 2007 may have used their SSN to work for a non-approved employer: specifically, 11% posted wages from an employer other than their approved employer, and 7% posted no wages from fiscal years 2007 to 2009.

Based on its findings, the OIG recommended that the Social Security Administration work more closely with DHS and establish a data match agreement to help DHS identify and reduce improper SSN usage by H-1B visa holders.

Photo credit: Aggressive Entertainment

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On September 29, 2010, Senator Orrin Hatch (R–UT) introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S.3901) (pdf). The bill is the third notable piece of immigration legislation introduced last week, together with the comprehensive immigration reform bill introduced by Senators Menendez and Leahy, and Senator Chambliss’ HARVEST Act (relating to agricultural workers). Senator Hatch’s bill addresses numerous immigration enforcement topics, and notable provisions include:

• Illegal aliens could only be paroled or granted deferred action on a case-by-case basis (for urgent humanitarian reasons or significant public benefit). Mass paroles and deferrals would be prohibited.
• Any state, county, city, or township that is eligible to participate in the Secure Communities program or to cross-designate local law enforcement officers to perform immigration law enforcement functions under section 287(g) (pdf) and does not participate in such programs may not receive compensation for incarceration expenses of illegal aliens.
• Individuals known or reasonably believed to be members of a known criminal organization regularly engaged in transnational criminal activity would be ineligible for visas.
• Elimination of the Diversity Visa Program, unless Congress signs off on changes designed to combat fraud and eliminate abuse in the program.
• Annual reporting by the Secretary of Health and Human Services on welfare benefits provided to states, and the portion thereof provided to illegal immigrants.
• Limiting states’ expansion of the Children’s Health Insurance Program (CHIP) coverage to noncitizen children or noncitizen pregnant women.
• Requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.

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As reported by NetworkWorld, the United States Citizenship and Immigration Services (USCIS) has expanded its Administrative Site Visit and Verification Program to address fraud and abuses of H-1B and L-1 Visa programs by conducting unannounced work site inspections of companies that sponsor H-1B and L-1 Visa holders. Its Office of Fraud Detection and National Security estimates that 21% of H-1B visa petitions violate program rules. The shift comes as the Visa Reform Act - proposed federal legislation that will increase restrictions on and oversight of the issuance of non-immigrant professional visas – remains in congressional committee and employers examine visa alternatives should the legislation pass.

During “surprise visits,” USCIS assessors attempt to confirm the identities of a petitioning employer and visa recipient to verify that both have complied with the visa’s terms and conditions. Unlike the U.S. Department of Labor which has the statutory authority to investigate employer compliance with visa obligations, USCIS has no regulatory or statutory authority to enter workplaces of H-1B or L-1 Visa holders. USCIS officials have confirmed that complying with the investigation is voluntary. Previously only religious organizations were subject to mandatory inspections and reviews, however presently any non-immigrant petition might be subject to a workplace audit after approval and prior to any potential adjudication.

Investigators will request to interview the petitioner, review documents that support the visa application, and enter the workplace to visually confirm the recipient’s employment conforms to H-1B terms and conditions. Employers are not obligated to submit to disruptive or unreasonable requests for access to company employees or company property, but it is advisable that companies sponsoring foreign professionals prepare for potential visits by doing the following:

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Due to the prevalence of fraudulent visas and passports, the Indian government is planning to install magnifying equipment and ultraviolet lamps at all international airports in order to more accurately verify the authenticity of travel documents. As reported by the Press Trust of India, other steps being taken at India’s international airports are the installation of new computer software (to verify passengers’ passport details) and additional training of immigration officers.

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Department of Homeland Security Secretary Janet Napolitano, speaking at a Senate Judiciary Committee hearing, stated that ensuring jobs for U.S. workers is one of her "top obligations," and that the DHS is increasing its enforcement of the H-1B visa program. As reported by Computerworld, Napolitano cited new fraud prevention tactics—including visits to work sites—implemented over the past month as an example of measures being taken to prevent abuses of the H-1B program. A 2008 study (PDF) by the U.S. Citizenship and Immigration Service, found that as many as one in five H-1B applications were affected by either fraud or "technical violations" of the program.

Napolitano’s comments were in response to a question from Sen. Richard Durbin (D.-Ill.) raising concerns about H-1B visa holders displacing American workers. Durbin is co-sponsor of the H-1B Visa Fraud and Abuse Protections Act (S. 887) (see our previous post), which includes several enforcement provisions such as audits of employers. Napolitano stated that "our top obligations are to American workers, making sure American workers have jobs."
 

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On April 30, the Department of Homeland Security (DHS) issued a Fact Sheet discussing its revised Worksite Enforcement Strategy. The DHS enforcement strategy was revised at the direction of DHS Secretary Janet Napolitano after she expressed concerns that enforcement efforts were targeted more at employees rather than employers abusing the law. Indeed, the Fact Sheet acknowledges that there were more than 6,000 arrests related to worksite enforcement in 2008, but only 135 employers were arrested.

The revised strategy "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by . . . knowingly hiring illegal workers." Immigration and Customs Enforcement (ICE) is to focus its resources on the criminal prosecution of employers that knowingly hire illegal workers, but will continue to arrest and prosecute illegal workers found during the course of worksite enforcement actions. ICE will also use all available civil and administrative tools, including fines and debarment, to deter illegal employment.

The Fact Sheet indicates that ICE will look for evidence of mistreatment of workers in addition to evidence indicating criminal conduct such as trafficking, smuggling, harboring, visa fraud, identification document fraud, or money laundering. Before conducting a raid and arresting workers at the site of employment, ICE will obtain indictments, criminal arrest or search warrants, or a commitment from the US Attorney's office to prosecute the employer. The existing humanitarian guidelines governing ICE’s behavior in raids affecting 150 or more employees will now apply to worksite enforcement efforts impacting 25 or more illegal workers.

The revised enforcement strategy suggests that there will be increased criminal enforcement efforts and interagency cooperative investigations. It is likely that ICE will continue the growing trend of planting agents within the employer's workforce to gather evidence of criminal activity. Going forward, it is almost a certainty that enforcement efforts will begin with an audit of I-9 compliance, particularly for employers in industries with high percentages of illegal workers, as well as for employers engaged in infrastructure projects. A recent Congressional Research Service report (PDF) analyzing unauthorized employment in the U.S. listed the following industries as having significant (over 10%) employment of illegal workers: Food Manufacturing, Agriculture, Furniture Manufacturing, Construction, Textiles and Apparel, Food Services, Administrative and Support Services, and Accommodation. Employers in these industries should review their I-9 compliance and adopt best practices to avoid adverse consequences related to employment of unauthorized workers.

This entry was authored by David Whitlock.
 

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