DOJ faults employer for choosing a visa category with lower filing fees.

A recent Department of Justice press release announcing a $9,928,000?civil immigration settlement offers a cautionary note to U.S. employers. The facts are not fully detailed and case file is sealed, but the press release describes the settlement as resolving "allegations that between 2014 and 2019, [a U.S.-based employer] underpaid visa fees owed to the United States by acquiring inexpensive B-1 visas, rather than more expensive H-1B visas, in alleged violation of the False Claims Act." The press release is accessible at: https://bit.ly/3N2uHE7.

The press release quotes an official with the Labor Department's Office of Inspector General:

“When companies apply for work visas, they must follow the rules and pay appropriate fees, just like workers.?We will continue to work with our law enforcement partners to vigorously pursue those who circumvent worker visa programs,” said Mathew Broadhurst, Special Agent in Charge, Southeast Region, U.S. Department of Labor, Office of Inspector General.”

Although the State Department's Diplomatic Security Service?was involved in the investigation, the press release does not explain how the settlement squares with a provision of State's Foreign Affairs Manual, 9 FAM 402.1-3?("Choice of Classification") which states:

"Choice When More Than One Classification Possible:?When it appears that an applicant can properly be classified under two or more nonimmigrant classifications, you must explain to the applicant the terms and requirements of each, including documentary requirements, maximum lengths of stay which may be authorized upon admission, and any other pertinent factors.?You must then base the classification of the visa on the applicant’s stated preference." (Emphasis added.)

To be sure, employers should only facilitate visa applications in deserving cases based on the actual facts and the satisfaction of eligibility criteria for the particular visa category sought. Still, if employers are bound to sponsor a work visa based on the most expensive filing fees, then this author believes the immigration authorities should state this duty explicitly.