Q&A: Are there site investigations for H1B employers and employees?

The USCIS is extremely cautious when it comes to evaluating fraud in H1B visa applicants, and because of this a petitioner must be vigilant in providing documentation. It is the responsibility of the employer to petition for the entry of the foreign worker. Beyond responsibility for filing the H1B, the employer must also submit a Labor Condition Application (LCA) to the U.S. Department of Labor and must satisfy four attestations. First the employer must prove that they will pay the prevailing wage for that particular field. A prevailing wage is determined by the National Prevailing Wage Center (NPWC) according to job title, description of the position, educational and work experience requirements, job location, as well as type of employer. This wage is defined as the average of wages paid to professionals similarly employed in the same field. Secondly, working conditions for the prospective employee will be afforded on the same basis, and according to the same criteria as U.S. workers. Adversely, the foreign employee will not affect the working conditions or opportunities of U.S. workers. The third attestation requires the employer to prove that at the time of filing, there is no current labor dispute in the future place of employment. The fourth and final attestations provides that the employer will notify workers employed in the field correlating with the position of the non-immigrant worker of the LCA filing. The actual LCA must be submitted with the H1B application, along with detailed documentation that proves educational history. These elements must all help to prove 3 things; that the employer has a legitimate needs for a “specialty occupation” worker, that the position offered is indeed a specialty occupation, and finally that the prospective employee is qualified for the position.

A filing fee in H1B petitions goes towards fraud investigations.  USCIS has examiners that will conduct site investigations to make sure the employer and employee are performing in a manner that was described in the H1B petition.