Do You Know Where Your (H-1B) Employees Are?

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If it wasn’t clear before, it’s certainly clear now that one of the Trump administration’s priorities is immigration enforcement, including identifying instances of employer fraud and abuse. Through President Trump’s recent “Hire American” Executive Order, he is calling for an analysis of the entire U.S. immigration system, as well as proposals from related agencies to address fraud and abuse concerns. The Order also specifically targets the H-1B visa program suggesting the award of such visas should go only to the most-skilled and highest paid foreign workers.

This level of reform to the H-1B program, of course, will require congressional action as the current law simply does not place these limitations on the existing program. As we await formal statutory changes, the U.S. Citizenship and Immigration Services (USCIS) has confirmed its intention to expand site visits targeting H-1B dependent employers, cases where employers’ basic business information cannot be identified and employers are sponsoring H-1B workers to work off-site.

Since 2009, USCIS has conducted site visits in an effort to ensure employers are complying with H-1B visa regulations, especially with respect to work locations and salary obligations where problems are most likely to occur. Under the new administration, there have been reports of USCIS site visits occurring while H-1B petitions are pending and even prior to the H-1B worker’s arrival at the worksite (which could result in even longer processing times).

During these enhanced site visits, the employer signatory of the H-1B petition should be prepared to answer questions regarding the basic terms and conditions of the H-1B worker’s employment, including job title, duties, compensation, and work location(s).

The employer also may be asked questions related to the processing of the H-1B worker’s payroll; whether other employees are similarly engaged, including other sponsored foreign national employees; and whether the employer had difficulty recruiting for the position.

For H-1B workers placed at off-site facilities (e.g. IT consultants, physicians, and others routinely placed at third-party worksites), employers may be asked about any agreements between the H-1B sponsoring employer and the off-site location as related to the assignment, as well as details related to the direction and control of the H-1B worker while s/he is off-site, tools provided to perform off-site work, and whether the off-site work will result in a product that will be marketed by the employer.

Employers must be prepared to show that despite the off-site work, there will remain a true employment relationship between the employer and the H-1B worker, in that the employer directs and manages the work of the off-site employee, provides the tools to perform the work (e.g., an employer-provided laptop), and the off-site work directly benefits the employer.

In anticipation of an increase in site visits from USCIS, employers should identify a company contact (likely within the legal or human resources department) to serve as the lead contact during a potential site visit, interact with the USCIS investigator, and provide the requested information.

Most critically, if any changes occur following the filing of an H-1B petition with USCIS (including but not limited to new job title, salary decreases, or changes in job responsibilities or work location), employers must immediately discuss such changes with their immigration counsel prior to those changes occurring. In addition, employers who are not the employer sponsor of H-1B workers but serve as the end client or otherwise “host” H-1B workers should expect USCIS site visits at their facilities and be prepared to answer questions regarding those third-party placements.

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