H-1B Site Visits: Guidance for Employers
As we reported in April, USCIS is continuing its initiative to increase H-1B site visits.
Accordingly, employers and H-1B visa beneficiaries may wish to review the below guidance to be prepared for such a visit.
H-1B Site Visits: Guidance for Employers
The U.S. Citizenship and Immigration Services (USCIS) created the Office of Fraud Detection and National Security (FDNS) in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts ensuring benefits are not granted to persons who threaten national security or public safety. H-1Bs have been the subject of site visits since approximately 2009.
FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE).
FDNS currently consists of Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS’ budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition.
FDNS conducts assessments in the H-1B, L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collect information during site visits to verify information pertaining to both pending and approved petitions. FDNS also uses the information to develop databases to identify factors and trends that could indicate fraud.
INITIATION OF AN FDNS SITE VISIT
FDNS site visits are generally unannounced.
The employer/ H-1B employee may be selected for a site visit for random quality control purposes; due to a tip from an anonymous party that there is a violation; due to a national security concern; or on the basis of priorities identified by the government (such as H-1B dependency, inability to verify the employer’s existence via VIBE, or a third-party placement situation).
Site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer).
The employer may request that its immigration attorney be present during the site visit. FDNS officers will not typically reschedule a site visit so that an attorney may be present, but they will allow counsel to be present by phone.
FDNS states it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions.
WHAT HAPPENS DURING AN FDNS SITE VISIT?
The FDNS officer normally has a copy of the H-1B petition, and will perform a site visit to verify the information contained in a specific employee’s immigration petition, regardless of the number of H-1B petitions filed by the employer.
The officer will ask to speak with the employer’s representative who signed the Form I-129. However, because the site visit is unannounced, if this representative is not available, the FDNS officer will usually ask to speak with another representative of the employer, such as a Human Resources Manager. The officer:
- May ask the employer’s representative for specific information about the company, including, but not limited to, the employer’s business, locations, and number of employees.
- May request to review a copy of the company’s tax returns, quarterly wage reports, and/or other company documentation to evidence that it is a bona fide business.
- May request confirmation that the signature on the Form I-129 petition is genuine.
- Will request detailed information about the H-1B nonimmigrant’s title, job duties, work location, and salary.
- May request to review a copy of the H-1B nonimmigrant’s most recent paystub and last Form W-2.
- May request to review the Labor Condition Application (LCA) Public Access file.
- May request information about the number of H-1B petitions that the employer has previously filed and information about the employer’s immigration counsel.
After speaking with the employer’s representative, the FDNS officer may then request a tour of the employer’s facility.
- During the tour, the FDNS officer may take photographs of the facility.
The FDNS officer will then normally ask to interview the H-1B beneficiary.
- May ask the beneficiary about his/her job title, job duties, responsibilities, employment dates, position location, requirements for the position, his/her academic background and previous employment experience, his/her current address, and information about his/her dependents, if any.
After speaking with the H-1B beneficiary, the FDNS officer may then ask to speak with a colleague of the beneficiary and/or the beneficiary’s manager.
- Will again request information about the beneficiary’s position title, the position duties, and the requirements for the position.
H-1B site visits usually last for less than an hour.
TIPS FOR A SUCCESSFUL SITE VISIT
- If there has been or will be a change in material facts related to the employment of an H-1B employee (for example, a substantive change in the job duties of the position, lowering of the salary, change from full-time to part-time, change in worksite location), counsel should be notified right away, and in advance of the change, to determine if an amended H-1B filing is required.
- Whether government agents or contractors require a warrant or subpoena in order to enter the private areas of a business to conduct H-1B investigations has not yet been tested. USCIS appears to take the position that submission of the petition by the employer constitutes a knowing waiver of Fourth Amendment rights. Whether or not the agency’s position is upheld, if agents are admitted to the premises by representatives of the employer, such action is sufficient to constitute a waiver of Fourth Amendment rights.
- Personnel responsible for greeting visitors should be advised of any company policy regarding admission of any unauthorized persons, including government agents or contractors, to the private areas of the business, without the approval of a designated company official. In the case of agents or contractors investigating an employer sponsored visa petition, the designated official should be knowledgeable of the petitioner’s immigration program and the conditions under which the beneficiaries are employed.
- Request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit in the H-1B program, including Immigration and Customs Enforcement, Homeland Security Investigations (ICE HSI), the Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. If the investigator identifies him or herself as a USCIS FDNS contractor, request a business card with a phone number to obtain confirmation of the officer’s credentials prior to providing any information.
- Advise immigration counsel of the visitation prior to any interviews.
- Arrange for a witness to be present during any interviews with government agents or contractors.
- Prepare notes of what transpired at the interview, label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to counsel for review and retention.
- Retain complete copies of I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Review this information prior to meeting with the officer to determine if you need additional information or have any questions prior to meeting with the officer.
Petition copies: When the H-1B petition is approved LAC sends a full copy of the H-1B petition to the employee, together with the original H-1B approval notice. The company representative may also access a copy of the petition via our online portal. For older cases which were not uploaded into the system, the employer is always welcome to contact us for a another copy.
- Third-party placements: If the beneficiary has been placed at a client site not controlled by the primary H-1B employer, the employer should notify the end user about the possibility of a site visit. The employer should request that the end user company contact the employer at the beginning of an FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user’s location.
- If the employer and/or end user company has secure areas which are not accessible to the public and the FDNS officer requests access to these secure areas, the employer should let the FDNS officer know this and offer to conduct interviews in a non-restricted area. Although employers should comply with reasonable requests from the FDNS officers regarding the examination of the employer’s premises or work areas, the employer should explain if it (or its client when the site visit is occurring at an end user client location) has strict policies against tours or photographs in such areas.
- If an FDNS officer requests information which you cannot accurately provide without further research, let the officer know that, rather than attempting to guess or speculate as to the answer. It is fine to indicate you will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and/or when there are no other company representatives available to answer the questions during the unannounced visit.
- A representative of the employer (and/or counsel) should accompany the FDNS officer during his/her review of the facilities and request to be present during the interviews of any of the company’s employees. However, note that the FDNS officer may deny this request in order to obtain the most candid responses from the employee.
- The company representative should retain notes of all information requested and provided (verbally or in writing), the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit. Additionally, a record should be kept of any documentation provided to the FDNS officer during the site visit.
RESULTS OF A SITE VISIT
Most often, the employer is not provided with any report or notice of results or conclusion of a site visit. In most cases, no news is good news.
If the site visit occurs prior to final petition adjudication, derogatory information obtained during the site visit may be used to deny the petition. If the site visit occurs after approval of the petition (as is most common), derogatory information can result in the revocation of a previously approved petition, often months or even 1 to 2 years after the site visit was completed.
Depending on the nature of the derogatory information, the matter could be referred to ICE for further investigation, which could lead to civil monetary penalties or criminal prosecution.