By Sherry Neal
The latest immigration enforcement effort by the U.S. Immigration and Customs Enforcement has resulted in the arrest of 11 individuals on visa and mail fraud. A New Jersey corporation, Vision Systems Group (VSG), was also indicted on charges of conspiracy and mail fraud along with a Notice of Forfeiture seeking forfeiture of $7.4 million from proceeds derived from the offenses. The government used information from immigration filings and tax filings to combine for a charge of conspiracy. No lawyer or law firm was mentioned in the indictment begging the question of who is VSG’s counsel or if they even had one. The 28 page indictment alleges that:
1. VSG filed LCA’s (Labor Condition Applications) and applications for permanent employment certification (ETA 9089 and the previous version, ETA 750) containing prevailing wages for a location other than where the employees would actually be employed.
2. VSG then tried to conceal it by filing tax wage reports to support the location listed on the immigration filings, rather than the actual work locations.
3. The government also used the immigration filings to support a charge for mail fraud.
It remains to be seen whether VSG was legitimately placing workers at other locations pursuant to the short-term placement rules under the Department of Labor’s H-1b Regulations or whether the company filed new LCA’s (and amended H-1b petitions) to cover the new worksite.
The government presented evidence to the grand jury that eight VSG’s Applications for permanent residence listed the employer’s address and employee’s residential address in Iowa and contained Notice of Job Opportunity (commonly referred to as “internal posting”) and job advertisements for Iowa whereas the employees worked at other locations. VSG’s best possible defense is if it was adhering to the long-standing Department of Labor “roving employee” interpretation. The roving employee interpretation allows the internal posting and prevailing wage analysis to be done at the company’s corporate headquarters if the employer has “roving employees” who work at different locations.
The Department of Homeland Security pooled the resources of several agencies to investigate this allegation of conspiracy and fraud: U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Division (FDNS); U.S. Department of Labor’s Office of Inspector General; U.S. Postal Inspection Service (USPIS); U.S. Department of State; and the Social Security Administration’s Office of the Inspector General.
For information on LCA requirements, see the following Hammond Law Group publications:
Common Labor Condition Application Violations in the H-1b Context
More than Just a Suitcase! Legal Requirements when Moving an Employee to a New Location
To Amend an H-1b or Not?
An Analysis of the USCIS H-1b Benefit Fraud and Compliance Assessment