10/07/2018 ![]() H-1B签证。(Getty Images) H-1B签证允许美国公司在国内招募不到合格的技术员工时,可以聘用外国高技能人才。但近年来H-1B项目被不少雇主滥用。因此,移民局开始对工作移民违规欺诈行为加大了打击力度,鼓励员工举报雇主不合规的行为,甚至用绿卡作为奖励。 移民局除了加强对H-1B签证项目申请者的调查,安排更多的实地考察和面谈。移民和海关执法局的调查包括了超过400项的刑事违规行为,重点关注雇佣H-1B员工比率较高的雇主,为工作地点在其他公司的员工申请H-1B的雇主,无法通过商业数据验证基本信息的雇主等等。 除了严查以外,移民局最近在官网公布如何举报雇主,并放上奖励制度,鼓励线民举报疑似H-1B欺诈或滥用的行为,甚至用绿卡奖励。 鼓励揭发的行为包括,H-1B雇员没有获得LCA(劳工状况申请)认证的工资,H-1B雇员和其他相同工作的雇员之间存在工资差距,H-1B雇员未能履行签证申请中规定的职责,H-1b雇员未在LCA认证的工作地点工作,H-1B的外国雇主盗窃美国的知识产权成果,H-1B的雇主参与走私,H-1B的雇主雇佣非法员工,从美国政府处诈骗福利等等。 在洛杉矶为一家小媒体公司拍摄的龚同学,H1B签证抽中后迟迟还未批下来,9月30日后他的OPT也过期了,按律不可以工作。但主管希望有拍摄任务时他也能来帮忙出工,薪资等签证下来后再结算。龚同学表示,虽然知道公司的做法不合法,但他认为举报雇主对自己百害而无一利,万一审查下来,自己的签证申请恐怕都有麻烦。更何况他担心自己一离开,自己的岗位就被别人顶上去了。 律师王振邦表示,由于雇主给雇员办工作签证,很多时候雇员担心一刀两刃砍,伤害到自己的签证申请。因此现在移民局给予一定的奖励和保护,尤其对于行为大胆的雇主,雇员又收集很足够的证据,移民局甚至在网站上放上了绿卡奖励。 同时,对于参与举报的H-1B雇员,如果他们由于举报行为丧失了H-1B资格,并且希望延长他们的H-1B状态或者改变他们的非移民地位,移民局可能会考虑他们的特殊情况,通过自由裁量权来批准他们的申请。 他解释,移民局同时也鼓励公司其他员工举报,不仅仅是H1B申请者。虽然移民局不能完全保证给予金钱奖励,但是移民和海关执法局拥有自由裁量权和法定授权,支持用于刑事调查的信息证据。移民局官网尤其鼓励员工,如果发现公司有在给人办H1B,但又从未见过这位同事的话,就应该举报。 同时他也建议雇主要小心行事,像龚同学这样的情况可能雇主和雇员在“蜜月期”时可以安好,但一旦以后关系闹僵,员工追溯起来会惹来麻烦。他举例自己的一位客户,公司未按要求替雇员支付申请H1B的律师费和申请费,而要他自己垫付。原本相安无事,但后来该员工对雇主不满,将其告上法庭,雇主结果被罚钱。 BY SHIREEN KARCUTSKIE ON SEPTEMBER 28, 2018 Starting October 1, 2018, the United States Citizenship and Immigration Services (USCIS) will begin implementing its June 28, 2018 policy memorandum1 to prioritize the removal of foreign nationals from the United States on the basis of public safety, in compliance with Executive Order 13768.2 Under this policy memorandum, the USCIS will issue Notices to Appear (NTAs) to a wider class of foreign nationals who are removable when there is evidence of fraud, criminal activity,or when the foreign national is denied an immigration benefit and is unlawfully present in the United States. USCIS has confirmed that the June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. However, it is important for employers to note that USCIS still could issue additional guidance on how employment-based petitions should be handled in the future. A Notice to Appear is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Typically, NTAs are issued when the foreign national is a national security concern or when an NTA is required by statute or regulation. Starting October 1, USCIS may issue NTAs on denied status-impacting applications, including, but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. As the USCIS noted:
This memo is just another of many immigration changes USCIS has been implementing in recent months. In addition to the Trump administration’s Buy American, Hire American Executive Order, USCIS has also begun implementing its “Combating Fraud and Abuse in the H-1B Visa Program” initiative, requesting that anyone with information in connection with “suspected H-1B fraud or abuse” contact USCIS through a special email address set up just for the initiative. USCIS indicates that individuals are encouraged to report allegations of employer fraud and abuse to the Department of Labor’s (DOL) Wage and Hour Division and to the U.S. Immigration and Customs Enforcement (ICE). In addition to encouraging reports of suspected fraud or abuse, USCIS has also announced an increase in employer site visits. USCIS will focus on:
Employers that may become subject to any of the above or that have questions regarding how any of this may impact existing or potential workforce are encouraged to contact counsel. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Employers who abuse the H-1B visa program may negatively affect U.S. workers, decreasing wages and opportunities as they import more foreign workers. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS. USCIS continuously works to deter and detect fraud in all immigration programs and we are furthering our efforts by enhancing and increasing site visits, interviews, and investigations of petitioners who use the H-1B visa program. These efforts will help assist in the prosecution of program violators and ensure that American workers are not overlooked or replaced in the process. Reporting Suspected H-1B Fraud or AbuseWe have established an email address dedicated to receiving information about suspected H-1B fraud or abuse. When submitting information, please provide the following information in the email:
Anyone (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) can send us tips, alleged violations, and other relevant information about potential H-1B fraud or abuse. Please write us at ReportH1BAbuse@uscis.dhs.gov Individuals are also encouraged to report allegations of employer fraud and abuse by submitting a Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division. The public may also contact U.S. Immigration and Customs Enforcement (ICE) by completing the HSI Tip Form. H-1B Fraud and Abuse IndicatorsExamples of H-1B fraud indicators may include:
Protections for H-1B Workers Who Report Suspected Fraud or AbuseIf an H-1B worker reports suspected fraud or abuse, immigration law may provide certain protections to these workers. If an H-1B worker:
we may consider this situation to be an instance of ‘‘extraordinary circumstances’’ as defined by sections 214.1(c)(4) and 248.1(b) of Title 8, Code of Federal Regulations. Normally, H‑1B workers are not eligible to extend or change their status if they have lost or failed to maintain their H-1B status. However, if they can demonstrate ‘‘extraordinary circumstances,’’ we may use our discretion to excuse this requirement on a case-by-case basis. Expansion of Site VisitsSince 2009, we have conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. We verify H-1B workers’ wages, job duties, and work locations during site visits. This action is not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system. We seek to determine if workers are not being paid while in the United States as they wait for projects or work, a practice known as “benching” which violates U.S. immigration laws. We also conduct site visits in cases where there are suspicions of fraud or abuse and refer many of the cases to our counterparts at U.S. Immigration and Customs Enforcement (ICE) for further investigation. Starting this month, we will take a more targeted approach focusing on:
Targeted site visits will also help us determine whether H-1B-dependent employers who normally must meet H-1B recruitment attestation requirements are actually paying their workers the statutorily required salary to qualify for an exemption from these requirements. These site visits will assist in determining if these employers are evading their obligation to make a good faith effort to recruit U.S. workers and to not displace U.S. workers. Targeted site visits will allow us to focus resources where fraud and abuse of the H-1B program may be more likely to occur. We will also continue to make unannounced and random visits to all H-1B employers across the country, both before and after any petition is adjudicated. Promoting TransparencyTransparency about how the H-1B program is being used is vital to ensuring accountability for employers and improving policies and practices that protect American workers. To view reports and data about H-1B petitions for previous fiscal years, please visit the Buy American Hire American: Putting American Workers First page and the Immigration and Citizenship Data page. Last Reviewed/Updated: 07/23/2018 | Principal, Tel: (301)906-6889; (240)912-6290 Licensed in MD, VA, DC, PA WeChat ID: sunnychenyuqing NMLS # 1220187 President, Principal Loan Consultant, Leader Funding, Inc. 电话: (240) 784-6645 Rockville, MD Phone: 301-366-3497 |
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