Not surprisingly, a recent USCIS report confirms thousands of H-1B employees are being underpaid, benched, or performing menial tasks instead of the high-skilled work were promised.

If you are one of those employees, you should know, however, that you do not have to simply accept this treatment and hope a better job comes along. You have the power to help put a stop to this exploitation now.

In this article, we discuss the report’s findings of fraud and what you can do to help reverse this disturbing trend.

H-1B Employer Fraud Rate

USCIS has conducted its first study on employer H-1B program violations and fraud and found the overall violation rate was 20.7 percent, according to the report “H-1B Benefit Fraud & Compliance Assessment,” which was released in September.

In other words, one in five H-1B employees is the victim of an H-1B employer violation.

The 20.7 percent violation rate includes a 13.4 percent instance of fraud (e.g. deliberate falsifications of documents or failure to pay the prevailing wage), and a 7.3 percent instance of technical violations (e.g. unintentional failure to pay the full prevailing wage or otherwise follow the law).

Methodology and Purpose

USCIS’s sample consisted of 246 cases randomly drawn from a total of 96,827 approved, denied, or pending I-129 petitions filed between October 1, 2005 and March 31, 2006, a six-month period.

USCIS conducted this study with an eye on reforming the H-1B program to reduce fraud. The results of the study “will serve as a basis for proposed changes to existing regulations, policies, and procedures, and as warranted, recommended legislative remedies,” according to USCIS.

Common Types of Violations Found

Of interest to our H-1B readers, the following fraud and technical violations were found:

  • H-1B employees not receiving the prevailing wage

This group made up 14 out of the 51 cases with a technical violation or fraud, representing 27% of the total violations found. Out of these 14 cases, nine were deemed fraudulent, and five had technical violations. This group included those who had been “benched” and those whose salary was reduced below the prevailing wage because the employer was unlawfully deducting fees associated with the filing of the H-1B petition.

  • Job duties significantly different from position description listed on the LCA/I-129 petition

This group made up six out of the 51 cases with a technical violation or fraud, which is 12% of the overall violations. Out of these six cases, five were for fraud, and one was for a technical violation.

Occupations with Highest Rate of Fraud

According to the study, some positions had unusually high rates of violations, in particular:

  • Accounting, human resources, business analysts, sales, and advertising occupations: Of this group, 42% of the cases were associated with some type of fraud or technical violations.
  • Computer-related occupations: This group, the most popular H-1B occupation, registered the fourth highest rate of violations, with 27% of the cases being associated with some type of fraud or technical violations.

“Indicators” of H-1B Fraud and Violations

Based on the results of its study, USCIS has identified the following as fraud/violation indicators, meaning these areas are expected to be targeted for heightened scrutiny under any new regulations and procedures:

1. Firms with 25 or fewer employees have higher rates of fraud or technical violations than larger-sized companies;

2. Firms with an annual gross income of less than $10 million have higher rates of fraud or technical violations than firms with an annual gross income greater than $10 million;

3. Firms in existence less than 10 years (i.e., 1995 and after) have higher incidences of fraud or technical violations than those in existence for more than 10 years (i.e., before 1995);

4. The results indicate that H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violations than other occupational categories;

5. Beneficiaries with only bachelor’s degrees had higher fraud or technical violations rates than did those with graduate degrees.

What Can I Do About The Exploitation and Abuse?

As the report shows, H-1B violations and fraud are all too common.

Why?

One reason is the lack of government enforcement against the employers who violate the H-1B regulations.

Another reason, however, are the H-1B employees themselves who do not speak up. They suffer in silence, afraid of being fired or deported if they report the violations. This inaction encourages the employers to perpetuate their fraud, exploitation and abuse.

Contrary to thinking, though, H-1B employees do have the power to put a stop to the violations and fraud they experience. They can combat exploitation and abuse by learning more about their legal rights and options regarding fraudulent employers, by seeking advice on the legal protections they have from employer retaliation, and by taking informed and effective actions with the assistance of competent attorneys and/or government representatives.

Additional Information

For more H-1B employee rights information, please visit the blog’s main page at http://h1blegalrights.com/. For information about Legal (Attorney) Services for H-1B employees, please visit here.

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.