A U.S. Citizenship and Immigration Services [USCIS] study, H-1B Benefit Fraud & Compliance Assessment published in September but just coming to light this month, found a 27 percent rate of fraud in the H-1B visa program.
The study, conducted by The Office of Fraud Detection and National Security [FDNS], drew 246 cases in a random sampling of the 96,827 "approved, denied or pending I-129 petitions" for employment of a non-immigrant worker filed between October 1, 2005 and March 31, 2006. Employers hiring IT professionals under the H-1B visa program must fill out an I-129 petition as well as an LCA [Labor Condition Application].
In order to insure that the applicants could be interviewed for the study, the BFCA looked at those seeking to extend their existing H-1B non-immigrant status or those who were seeking new employment as an H-1B nonimmigrant while living in the U.S. in another non-immigrant visa status.
The study found two types of fraud, "willful misrepresentation, falsification, or omission of a material fact" and a second type where there was no willful fraud, but "there was evidence that the employer or alien beneficiary failed to comply with applicable laws and regulations."
However, although some of the "technical" violations were minor infractions, the description of some of the "technical" violations appear to be serious breaches in the regulations.
For example, there were instances where "the employer failed to pay the beneficiary at least the prevailing wage for the particular occupation in the specific geographical location as noted and attested to on the LCA filed with the Department of Labor."
Another violation that was considered technical was the employer charging back to the petitioner the filing fees the employer was obligated to pay, according to the regulations.
The study said this practice had the effect of "lowering the beneficiary's wages to less than the required prevailing wage."
The most blatant misrepresentation cited by the study was in a case where the H-1B visa worker "was performing duties that were significantly different from those described on the LCA and I-129 petition."
In this particular case, an IT professional hired as a "business development analyst" was found to be "working in a Laundromat doing laundry and maintaining washing machines."
Other fraudulent activity uncovered were cases where the business did not exist, degrees and supporting documentation were forged, and signatures forged.
There were a total of 51 cases from the sample of 246 H-1B petitions that were confirmed as fraud or a technical violation.
The breakdown was as follows: 13.4 percent outright fraud; 7.3 percent technical violations. The overall percentage was 20.7 percent.
Although the sampling appears small, 246 out of over 96,000 applications, the study found that by extrapolating out from the sample and "applying the overall violation rate of 20.7 percent to the overall H-1B population, a total of approximately 20,000 petitions may have some type of fraud or technical violations."
Many opponents to the H-1B visa program have claimed in the past that the program is being used by U.S.-based firms to pay workers less than the prevailing wage. The study found that 27 percent of the workers in the study were indeed being paid less than the prevailing wage for a particular job description and location.
Among these the study also found the illegal practice of "benching" where an employer places an H-1B employee into a "nonproductive status without pay or with reduced pay during period of no work."
Other fraudulent activities included 14 percent of the violations which had to do with either a shell business that did not exist or no bona fide job offer.
The study concluded its findings by saying that the USCIS will be making "procedural changes" to amend these violations and that they will be laid out in a future document.