- 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.
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Practice Pointers for FDNS site visits:
