The U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on March 31 rescinding the Dec. 22, 2000, “Guidance memo on H1B computer related positions.” The government implemented the H-1B visa program to help U.S. companies recruit foreign nationals skilled in specialized areas, specifically for times when there is a shortage of highly skilled workers in the U.S. The majority of H-1B recipients are computer software developers and computer system analysts. The third highest recipient group of H-1B visas are computer programmers, and that group was the topic of the March 31, 2017, memorandum.
The March memorandum is USCIS response to the H-B1 visa fraud which has been taking place across the country. The most common fraud scheme involves misclassification. This is where an employer classifies the employee as a lower level graphic programmer, yet the programmer is performing the duties of a senior engineer. Lower level programmers earn the entry-level salary. When that lower level programmer is a foreign national, the entry salary is around 40 percent below the average industry salary for American workers. This type fraud not only goes against the purpose of the H-1B visa, but it also lowers the average wage in the industry for senior-level jobs. That’s because foreign nationals are performing the same senior-level jobs, but at entry-level pay.
USCIS responded by clarifying that an entry-level computer programmer position would no longer generally qualify as a specialty occupation position, which is required for the H-1B visa. This requires employers to provide other evidence to establish that the particular position is a specialty occupation. Whistleblowers have played, and will continue to play, a large role in uncovering H-1B fraud as companies continue to recruit foreign nationals in attempt to pay entry-level salary for senior-level duties.
USCIS has provided five indicators that could point to possible H-1B fraud. These indicators are:
• A wage disparity between the H-1B worker and the other workers performing the same duties. Especially when the company is paying the H-1B worker a much smaller salary.
• The H-1B worker is not performing the duties assigned in the H-1B petition. Especially when the duties performed are a higher level than the description of the position.
• The H-1B worker has less experience then the U.S. workers in the same position.
• The H-1B worker is not working in the locations certified on the Labor Condition Application.
• The company is not paying the H-1B worker the wage certified on the Labor Condition Application.
Sources: www.uscis.gov and Gould, C. Lance. Whistleblowers: A Brief History and a Guide to Getting Started.
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