In early 2005, USCIS created the Benefit Fraud and Compliance Assessment (BFCA) program. The program was developed to “evaluate the integrity of various nonimmigrant and immigrant benefit programs” by reviewing petitions and applications for factors related to fraud.
The BFCA completed an assessment of the H-1B program in 2008. They reviewed 246 H-1B petitions drawn from over 96,000 approved, denied or pending cases filed between October 1, 2005, and March 31, 2006. The purpose was to investigate all levels of fraud, technical violations, and abuse in the H-1B program based on a “snapshot” in time. After reviewing the petition for technical violations, a site visit was conducted to corroborate the information provided in the petition.
The investigation uncovered 51 petitions (or 20%) that were fraudulent or contained one or more technical violations. Of the 51 cases, 33 (13%) were found to contain fraud. The most common form of fraud (10% of all violations) was forged or fraudulent documents. The study identified the following indicators for fraud:
1. Petitioner has 25 or fewer employees
2. Petitioner has annual gross income of less than $10 million
3. Petitioner has been in existence for fewer than 10 years
4. Positions in accounting, human resources, business analysis, sales and advertising occupations are involved
5. Beneficiaries with bachelor degrees had a higher fraud rate than those with graduate degrees
Using the data in the BFCA assessment, Donald Neufeld, Acting Associate Director, Domestic Operations for USCIS, issued a memorandum on October 31, 2008, advising the Adjudicating Officers (AOs) when to send a case to the Center Fraud Detection Office (CFDO). The memo was not available to the public until recently. AILA (American Immigration Lawyers Association) secured a copy and released it on AILA InfoNet on May 22, 2012. The memo issues guidance on how to “mark” H-1B petitions that may be fraudulent. AOs are instructed to review an H-1B petition with a “heightened possibility for fraud” if certain factors exist. An AO must complete a Fraud Referral sheet prior to sending the petition to the CFDO.
The memo also references the CFDO “Compliance Review Report” to be used when performing an H-1B site visit. Site visits have become increasingly prevalent in the last 12 months. The report lays out what the officer should look for and includes a worksheet to follow. The “Site Inspection” report outlines questions relating to the bona fides of the business as well as specific questions related to the beneficiary.
The memo provides employers with helpful guidance for petitions and responding to site visits. A petition that meets at least two factors USCIS has identified should alert the employer it may be subjected to additional questions and even an inspection. Adequate preparation would go a long way to securing successful petitions.