H-1B Fraud & Violation

The Specialty occupation means that the job should require both a highly specialized knowledge and a person with a bachelor’s or higher degree in that specialty. Typical jobs eligible for hiring H-1B workers (Guest Workers or also called alien workers or foreign workers) should be in the areas (indicative but not limited to) such as computer professionals, engineers, accountants, financial analysts, management, consultants, attorneys, business executives, university professors, teachers, scientists and researchers.

Labor Condition means that the employer (a) should not discriminate wages between alien worker and the domestic worker for that job and should not discriminate working conditions. Working conditions here include number of hours of work & other benefits such as insurance, vacation etc.

Visa fraud is defined as a willful act whereas visa violation is unintended technical violation. Burden of proving ‘intent’ is on prosecution. Fraud generally includes (a) making false statement to gain visa; (b) presenting fake documents. Typical fraud types are (a) non-existent business (b) fake degree (c) fake resume (d) misrepresentation of job roles. Typical violations include (a) paying lower wages (b) demanding more working hours (c) transferring the worker outside the specified job location and (d) benching etc.

The studies* indicate that there is a higher prevalence of fraud and violations among employers of bachelor degree holders when compared to masters or above degree holders. Indians account for both the largest H-1B beneficiaries as well as for the largest H-1B frauds & violation incidents. Fraud and violations are more likely to happen in small businesses than in large businesses. Accounting, human resources, business analysts, sales and advertising jobs have higher incidence of fraud and violation when compared to other jobs.

*H-1B Benefit Fraud & Compliance Assessment (2008) U.S. CITIZENSHIP AND IMMIGRATION SERVICES