December 12, 2013 –
Immigration law update: Infosys fined $34 million by USCIS; E-Verify enhancements; H-1B visas

This year-end immigration law update, brought to you by Gunster’s immigration practice attorneys, covers 3 topics below: E-Verify enhancements to deter employee fraud; H-!B visa petitions; and Infosys pays a record $34 million fine to settle accusations of visa fraud and noncompliance.

1. New security enhancement helps E-Verify deter employee fraud

The U.S. Citizenship and Immigration Services has announced that E-Verify, a free web-based service that allows employers to quickly verify the employment eligibility of a new employee, can now lock Social Security numbers that appear to have been used fraudulently.

E-Verify, as initially designed, was not able to detect identity theft. Subsequent enhancements to address this weakness have included instituting a photo matching tool and integration with certain states’ Department of Motor Vehicles databases.

Similar to the process used by credit card companies to lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently. USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify.

An employer, for example, may enter information into E-Verify that appears valid – such as a matching name, date of birth, and SSN – but that was in fact stolen, borrowed or purchased from another individual. This new safeguard enables USCIS to lock a SSN that appears to have been misused. A “Tentative Nonconfirmation” (TNC) will result if a SSN that has been locked is submitted, and the employee will have an opportunity to contest the TNC by confirming, with a local Social Security office, that the employee’s identity matches the SSN. The TNC for an employee that receives such confirmation will be converted to “Employment Authorized.”

USCIS encourages employees involved in such successful confirmation procedures to contact USCIS to discuss available resources on identity theft and fraud prevention.

For additional information see New security enhancement helps E-Verify deter employee fraud (USCIS press release, 11/18/13)

2. H-1B visa petitions for nonimmigrant workers accepted beginning April 1, 2014, until quota met

This is a reminder that April 1, 2014, is the first day the USCIS will begin accepting H-1B petitions filed on behalf of nonimmigrant workers for employment commencing on or after October 1, 2014 – i.e., for fiscal year 2015.

In FY2014, H-1B filings exceeded the available statutory quota on April 5, 2013. Consequently, USCIS instituted its computer-generated random selection process.

It is unknown at this time how the number of H-1B filings for FY2015 will compare to the number of petitions USCIS received last year. With the economy improving, and more hiring taking place, it is possible that the statutory quota could again be met soon after the period for filing H-1B petitions opens.

As such, employers who desire to hire H-1B aliens subject to the statutory quota should consult with immigration counsel as soon as possible regarding filing on the first day of the H-1B cycle, or as early in the cycle as feasible.

The H-1B visa classification is for temporary employment of foreign professionals in specialty occupations, including but not limited to, information technology professionals, business analysts, financial managers, engineers, architects, allied health professionals such as physical therapists as well as fashion models. There is a yearly statutory cap of 65,000 H-1B approved petitions for the general category, of which 6,800 are reserved for Chile and Singapore Free Trade H-1B visas, resulting in only 58,200 for all other nationalities. There is an additional quota of 20,000 for foreign professionals with advanced degrees (master’s degrees or higher) from U.S. institutions.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the quota until December 31, 2014.

Exemptions from the annual quota may apply in instances of:

• requests for extensions of stay for current H-1B workers;
• amendments to H-1B petitions requesting a change in the terms of employment for current H-1B workers; and
• change of employer petitions for individuals already in H-1B status.

In addition, petitions for new H-1B employment are not subject to the annual quota if the foreign professional will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

Employers desiring to hire H-1B aliens and who believe a quota exemption may apply to them should consult with immigration counsel to analyze their situation well before the H-1B quota is reached.

3. Infosys pays record $34M fine to settle accusations of visa fraud and noncompliance

According to information released by the USCIS, Infosys Limited, an Indian company located in 17 cities in the U.S. and involved in consulting, technology and outsourcing, has agreed to pay a record $34 million fine to settle accusations of visa fraud and abuse of the U.S. immigration systems and noncompliance with employment eligibility verification requirements.

According to court documents, Infosys utilized the H-1B and B-1 visa classifications to bring foreign nationals to the U.S. to perform work and fulfill contracts with its clients.

The H-1B visa program is highly regulated so as to protect both U.S. and foreign workers from unfair competition and inequitable wages. The H-1B classification is intended for the temporary employment of foreign professionals in specialty occupations and is limited per a yearly statutory cap.

On the other hand, although the B-1 visa classification is not subject to a quota, a foreign national is only eligible for a B-1 visa if he or she seeks to enter the U.S. solely to engage in legitimate business activities that do not involve gainful employment, i.e., the performance of skilled or unskilled labor for wages or other remuneration. Legitimate business activities under the B-1 classification include attending conferences or seminars, consulting with business associates, participating in litigation, and participating in professional or business conventions.

The investigation carried out by several U.S. agencies, including the USCIS, resulted in allegations that Infosys circumvented the requirements of the H-1B program by knowingly and unlawfully using B-1 visa holders to perform skilled labor to fill positions in the U.S that would otherwise be performed by U.S. workers and/or foreign nationals employed pursuant to legitimately obtained employment-based visa classifications.

Additionally, it was alleged that Infosys failed to comply with employment eligibility verification requirements and specifically failed to maintain I-9 records for many of its foreign nationals in the U.S, including a substantial failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees.

The settlement agreement reached between Infosys, the U.S. Attorneys Office in the Eastern District of Texas, the U.S. Department of State and the U.S. Department of Homeland Security, not only requires that Infosys pay $34 million, the largest payment ever levied in a U.S. immigration case, but it also mandates that Infosys carry out enhanced corporate compliance measures relating to employment eligibility verification and its continued use of the H-1B and B-1 visa programs.

Infosys further agreed, as part of the settlement, to retain at its own expense an independent third-party auditor or auditing firm to review and report on its I-9 compliance to the U.S. Attorney for two years following the signing of the settlement agreement.

The Infosys case sends a strong message to U.S. employers that immigration-related compliance, whether in the employment-visa context or the Employment Eligibility Verification context is a boardroom-level issue.

For additional information see Indian corporation pays record $34 million fine to settle allegations of systemic visa fraud and abuse of immigration process (ICE press release 10/30/13)

	Yes!  Please sign me up to receive email alerts from other Gunster practice areas.
Image courtesy of FreeDigitalPhotos.net