In September, USCIS released the "H-1B Benefit Fraud and
Compliance Assessment," where it found that 51 of the 246 sampled
H-1B petitions (about 21 percent) were fraudulent. Some examples of
fraud are petitions from businesses that do not exist, employers
paying less than the required prevailing wage, or visa holders
working a different job than what was stated in the petition.
H-1B visas allow U.S. employers to hire foreign workers for
specific periods in certain specialty occupations. Ensuring the
integrity of our visa programs is a critical aspect of reforming
the existing legal avenues available to foreigners coming to the
United States. Getting employers the workers they need to grow the
economy while addressing legitimate security concerns and ensuring
the integrity of the non-immigrant visa system is vital.
Congress and the Administration must work together to improve
the management of the H1-B visa program and adopt reforms that will
allow the program to better meet the nation's workforce needs.
Finding and Fighting Fraud
The H-1B visa for highly skilled temporary workers is a very
popular program for non-immigrant workers. Workers participating in
the program can work only for a specific sponsoring employer. Terms
of employment are limited to six years. For the past several years,
the cap for H-1B visas has been 65,000 a year, and each year USCIS
reaches the cap within days. This low cap is the biggest concern
for the H-1B program. Businesses are finding it difficult to find
enough Americans to fill certain jobs and have been leaning on H-1B
visas for help. However, with the low number of available visas,
some companies have decided to open their doors in other countries.
Microsoft, for example, has established facilities in Canada and
Mexico, finding it easier to bring skilled workers there than to
the United States.
Additionally, the low caps may actually be driving an increase
in fraud as more employers and workers compete for the limited
number of legitimate visas available. Though necessary, simply
raising the cap will not eliminate fraud.
The Need for Internal Enforcement
The percentage of fraudulent petitions demonstrates the need for
government to increase its oversight of visas. This should be done
in a sensible way that does not jeopardize the ease for applicants
to receive a visa.
Currently, employers file for a labor certification with the
Department of Labor (DOL), followed by a petition for H-1B visas
with USCIS. Once the petition is approved, the non-immigrant
applies for a visa and begins his or her employment in the U.S.
This system's major flaw is its heavy emphasis on verification
during the application process, which is offset by the complete
lack of oversight once a person has entered the country. This is
concerning because most fraud does not become apparent until after
the H-1B recipient has begun employment in the United States. That
is, there is no way to check that the employee and employer are
abiding by the rules, paying the prevailing wage, or working the
job described in the petition and in the correct location until the
employee has entered the U.S. and begun working.
The "H-1B Benefit Fraud and Compliance Assessment" report found
that site visits were extremely effective in discovering fraudulent
petitions. This, in addition to other measures, would greatly
enhance the ability of the government to catch fraudulent cases and
bar those employers from the program.
Promoting the Integrity of H-1B
While this program is necessary for many companies in the United
States, if there is rampant fraud occurring, then major expansion
cannot take place. The H-1B program is still one of the better
visas available in the U.S. What it needs is proper oversight. To
that end, Congress should take the following actions:
- Increase oversight during the visa holder's stay.
Government should maintain oversight of H-1B recipients during
their employment in the U.S. Since most of the fraud becomes
apparent only after the application process, there should be more
effort to ensure that employers and employees are following the
rules. This can be done by having random site visits of
- Create interoperable databases. Catching fraudulent
applications can also become much easier if both the DOL and the
Department of Homeland Security were able to share information
about employers and H-1B recipients. Currently the departments are
firewalled from viewing applications submitted to the other
department, making it difficult to find inconsistencies in
- Create a voluntary exit system. If either the visa
recipient or his or her employer is willing to lie to have that
person work in the U.S., there is no guarantee that the worker will
leave once the visa has expired. Visa programs should require that
employers post bonds to ensure that visa recipients leave the
country prior to their visa expiration dates. Visa recipients
should go through exit systems at certain points of entry to prove
that they have left the country. If they do not exit prior to the
expiration dates, they are no longer eligible for U.S. visas.
Helping Employers and Employees
Reforming the legal avenues available to foreign workers is a
major factor in immigration reform. The government must find ways
to make these programs legitimate and secure while meeting the
needs of both employers and employees.
Diem Nguyen is a Research Assistant
and James Jay Carafano,
Ph.D., is Senior Research Fellow for National Security and
Homeland Security in the Douglas and Sarah Allison Center for
Foreign Policy Studies and Assistant Director of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The