Investigations, Penalties, and Criminal Charges Increasing for Visa and Immigration Violations
A CEO of two technology firms has been sentenced to 87 months in jail and fined over $1.1 million dollars for an H-1B visa fraud scheme that brought in skilled foreign workers to work on client projects that did not exist.
The U.S. government has been increasing its investigations of H-1B, L-1, E-3, TN and other work visas by visiting work sites and verifying company addresses, clients, and finances. They have also increased audits of company I-9 forms and started investigating compliance with requirements for work permits for graduates with STEM (Science Technology Engineering and Math) degrees, which involve establishing on-the-job training programs.
Under the Trump administration employers must take special care to ensure compliance with immigration laws and work authorization requirements. Workplace audits and site visits have increased and significant fines and even criminal penalties can be imposed. The main areas for employers to concentrate on are as follows:
I-9 compliance: all employees, not just foreign visa holders, must fill out an I-9 form on the first day of hire. Dedicated human resources employees should be trained on the proper completion of the I-9 form and the documentation required to show employment authorization in the United States. Forms should be reviewed for compliance to avoid fines and penalties in case of government audit.
H-1B, L-1, TN and other work visas: All employees with work visas must be employed in compliance with their visas’ requirements. This may mean they must work at a specified work location in a specific position at a required wage as described in their visa application. Employer should review the visa applications and ensure the foreign worker’s employment complies in case of a site visit by immigration officers to avoid fines, penalties, and visa revocation.
STEM OPT compliance: certain students with STEM degrees may get two-year extensions of their work permits (Employment Authorization Document, or EAD) if their employer is enrolled in E-Verify and the students participate in an on-the-job training program related to their studies. Ensure the required training programs are in place in compliance with the STEM OPT application.
B-1/B-2 visa fraud: increasingly the government is investigating and questioning foreign nationals entering the U.S. on visitor (B-1/B-2) visas and the Visa Waiver Program. Note these visas do not allow the visitor to “work”, and the allowed “business activities” are very limited. Any provision of services to a U.S. company, whether or not the visitor is on U.S. payroll, may be considered to be unauthorized employment. Employing a worker on a visitor visa may be considered visa fraud.
Immigration compliance is increasingly fraught with pitfalls for employers and foreign nationals alike. Training and compliance procedures may allow companies and their employees to avoid fines, criminal charges, and even prison time and a permanent ban from the United States due to visa fraud or a pattern and practice of employment of unauthorized workers. Contact your attorneys to ensure your company and your employees are not at risk.