Consular officers are taking a more active role to stop employer abuse of the H-1B program, by reporting H-1B employer’s suspected wage violations to the Department of Labor (DOL) for investigation, based on information the officers obtained during visa interviews with workers.

The officers’ interest is good news to the extent unlawful H-1B employer practices are being challenged.

The bad news is, some H-1B employees seeking visas at consulates are themselves under scrutiny based on the bad acts of their former employers.  Some visa workers being interviewed are at risk of prolonged “administrative processing” or, worse, a denial, based on a former employer’s violations.

As of September 2012, the consular officer’s handbook, the Foreign Affairs Manual, has revised its notes at 9 FAM 41.53 N27 et seq, explaining the types of H-1B employer violations that can occur and provides instructions about what to report and to whom.

The FAM’s revisions put in writing what consular officers have already been doing in practice for the past several years in response to the government’s growing concern about H-1B program fraud. The FAM’s note on the subject discusses an employer’s obligations under DOL regulations as participants in the H-1B program, including requirements to pay the required wage and prohibitions against benching.

The FAM describes a variety of scenarios that consular officers might come across during an employee’s visa interview that indicate possible program violations by an H-1B employer, including discrepancies between the required wage identified on the LCA and the wages reported on employer or employee tax forms, an employer’s failure to pay return transport home upon termination, and an imbalance between the number of H-1B approvals for a particular employer compared to the number of employees reported on the employer’s payroll documents (e.g. 50 active H-1B approvals but only 10 H-1B employees being paid).

The FAM’s note tells consular officers they should report any suspected employer violations to the Fraud Prevention Unit at the Kentucky Consular Center (KCC), which is the DOS centralized processing unit for USCIS petitions. The KCC presumably then liaises with the DOL.

The note reminds officers only violations that occurred in the past 12 months should be reported. DOL’s filing deadline for WH4 complaints (for wages being underpaid to H-1B workers) has a 12-month limitation.

Of interest, the FAM notes remind consular officers that such violations do not preclude visa issuance.

Your primary responsibility in visa adjudication is to carry out the requirements of U.S. immigration law. Occasionally, you may discover indications of possible violations of other U.S. laws, even if you issue a visa. This note outlines types of possible violations of U.S. labor law, and tells you how to report them to the Department of Labor (DOL). In most of these situations, you likely would still issue a visa. 9 FAM 41.53 N27 BACKGROUND

In practice, however, immigration attorneys are reporting that if the suspected violations involve a worker’s current H-1B employer,  some consular officers are putting the case in the pending file (and issuing to the applicant what is known as a 221(g) refusal, a reference to the immigration code section, meaning more information is needed before a decision can be made), and returning the petition to USCIS for follow up investigation. Because the focus is on employer-fraud prevention, this procedure would be expected.

If the violation involved a prior employer, visa issuance should not be jeopardized, but in practice the attorney authors of this blog also have seen a 221(g) refusal issued for additional “administrative processing” in such a case, even for violations far outside the 12-month reporting period.

Whether this type of “administrative processing” is a new trend, with H-1B employees to be experiencing fallout for their prior employer’s violations,  remains to be seen. In the past, the attorney authors experienced no visa processing delays or denials related to violations by an H-1B employee’s prior employer. The attorney authors will update our readers as we obtain more information so you will know what to expect at your next visa interview.

DOS’ enhanced focus on enforcement has been coupled with efforts to raise H-1B employees’, as well as other temporary workers’, awareness about their rights in connection with the campaign against trafficking in persons. DOS has created a pamphlet available in multiple languages that discusses foreign workers’ rights while in the United States.

If you have been benched without pay, underpaid, or experienced other H-1B program violations, you should consider seeking competent legal advice.  You should also consider seeking such legal advice promptly, before risking the passing of any legal filing deadlines (not all of which you may be aware of) or before any visa interview takes place.

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