The Fraud Detection and National Security (FDNS) Directorate created and implemented the Administrative Site Visit and Verification Program (ASVVP) in July 2009 as part of its ongoing enhancement to the integrity of the immigration benefit process. Under the ASVVP, FDNS conducts unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions. USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.
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. FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS employs 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 Prevention Fee, which is paid by employers with each initial H-1B or L-1 petition.
The site visits for the most part have been unannounced. The site visits may occur at the H-1B/L-1 employer’s principal place of business and/or at the nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B/L-1 employer).
The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.
- Don’t stress. There should be no reason to panic as long as the information provided during the site visit is consistent with the information provided in the petition.
- Assign a backup HR representative in case the signer of the immigration documents is unavailable.
- Notify the receptionist that a DHS investigator may visit the company unannounced. The receptionist should refer the investigator to the designated person (or backup). The receptionist should not allow the investigator to speak with the employee until he or she has spoken to the designated company contact.
- Notify H-1B and L-1 workers that a site visit is possible and that it is a routine procedure.
- Ensure that copies of immigration related filings are readily available in case of a site visit.
During the site visit, the FDNS officer will normally verify information contained in a specific immigration petition, regardless of the number of H-1B/L-1 petitions filed by the employer. The FDNS officer will normally have a copy of the petition. The FDNS officer will usually request 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 then ask to speak with another employer representative, such as a Human Resources Manager. When speaking with the employer’s representative, the FDNS 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. The FDNS officer 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. The FDNS officer may also request confirmation that the signature on the Form I-129 petition is genuine. The FDNS officer usually will request detailed information about the nonimmigrant’s title, job duties, work location, and salary. The FDNS officer may also request to review a copy of the nonimmigrant’s most recent paystub and last Form W-2. So far, FDNS officers have not been requesting to review the Labor Condition Application (LCA) Public Access file. The FDNS officer may also request information about the number of H-1B/L-1 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 normally request to interview the H-1B/L-1 beneficiary. During this interview, the FDNS officer 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 beneficiary, the FDNS officer may then request to speak with a colleague of the beneficiary and/or the beneficiary’s manager. When speaking with these individuals, the FDNS officer will again request information about the beneficiary’s position title, the position duties, and the requirements for the position.
The site visits usually last for less than an hour.
An FDNS Officer will review the information gathered, and determine whether there is a need to conduct an administrative inquiry. If the site visit was successfully completed, the employer and nonimmigrant beneficiary will not receive any further communication regarding the visit. If an administrative inquiry is required, FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF). The ISO will use the SOF to determine whether or not the petitioning organization qualifies for the benefit sought. If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.
- Whether government agents or contractors require a warrant or subpoena in order to enter the private areas of a business to conduct H-1B/L-1 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. In general, personnel responsible for greeting visitors should be advised that it is company policy not to admit 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 a visa sponsorship petition, the designated official should be knowledgeable of the petitioner’s immigration program and the conditions under which the beneficiaries are employed. Generally speaking, counsel who prepared a petition cannot volunteer to vouch for the accuracy of the information in the petition, unless he or she has personal knowledge of the facts at issue.
- The employer’s designated company official should request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit in the H-1B/L-1 program, including ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. Therefore, it is critical that you determine which agency you are providing information to in the event follow up is needed. If the investigator identifies himself/herself as a USCIS FDNS contractor, request a business card with a toll free number to obtain confirmation of his/her credentials prior to providing any information. You should always obtain a business card from the government official or make a copy of their credentials if they don’t have such a card.
- LAC should be advised of the visitation prior to any interview of company representatives. We also strongly recommend that an attorney from our office attend the interview in person or by phone, if possible. You should request that the interview not proceed until LAC is contacted.
- We advise that you do not speak with government agents or contractors without a witness present. Both the witness and the interview subject should be debriefed as soon as possible by an LAC attorney following the interview. If this is not possible, both the witness and the subject should prepare notes of what transpired at the interview, label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to LAC for review and retention.
- We advise that you retain complete copies of your I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to an interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit regarding a random petition selected by counsel under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation by a government agency.
- Employers should provide a copy of the I-129 petition and supporting documents to the H-1B worker relating to the nature of the job opportunity, the terms and conditions of employment, and the beneficiary’s education and prior work history.
- If the foreign national beneficiary has been placed at a client site not controlled by the employer (for example, contract employees), the employer should notify the end user about the current FDNS H-1B/L-1 assessment program and 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 explain to the FDNS officer about the secure areas and possibly suggest other less sensitive areas in order to conduct interviews with the beneficiary. 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 from the employer and the employer cannot provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she 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 there are no other company representatives available to answer the questions during the unannounced visit.
- A representative of the petitioner (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. This request may be denied in order to obtain the most candid responses from the employee. The interests of the beneficiary (foreign national employee) and the petitioner (sponsoring company) are not necessarily the same, and historically, government investigators have refused access to employer representatives and attorneys at employee interviews. The representative should take 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.
- Employers should remember that any derogatory information obtained during the site visit could be used to deny a petition if the site visit occurs pre-adjudication, or could result in revocation of a previously approved petition in the post-adjudication process. The matter could also be referred to ICE for further investigation, which could lead to civil penalties or criminal prosecution.