H-1B Site Visits:
Prepare for the Expected
U.S. employers who hire foreign national employees in H-1B status are now routinely subject to random, on-site visits from the Fraud Detection and National Security (FDNS) Office. The FDNS supports U.S. Citizenship & Immigration Services (USCIS) by detecting, combating and deterring fraud in certain visa petitions, while administering immigration benefits. The H-1B regulations allow FDNS to conduct site visits and investigate employers without a subpoena. The total number of H-1B site visits were 14,433 in fiscal year 2010 and 4,548 in the first half of fiscal year 2011. The visits are unannounced and are conducted either before or after the adjudication of randomly chosen petitions.
What to Expect During a Site Visit
The FDNS officer or a contracted employee will visit the employer's principal place of business or employee's worksite location listed on the Form I-129, Petition for Nonimmigrant Worker, either after the petition is approved or while the petition is still pending. The officer will typically ask to speak with the H-1B employee, the person who signed the H-1B petition, and/or the employer representative. The employer may request the presence of their immigration attorney during the site visit; if the attorney is unable to attend in person, he or she may appear via teleconference. For the most part, however, USCIS does not recognize the right to counsel during site visits and assumes that petitioners consented to the visits by signing the I-129 form, which states in Part 7, "I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews."
During the site visit, the FDNS officer will ask questions to verify certain information in the visa petition, as well as to confirm the existence of the employer-employee relationship and whether the employer controls the employment of the beneficiary. The FDNS officer may question the employer about the company, including the total number of employees, total number of employees on H-1B status, gross annual income, and net annual income. The officer may also ask about the beneficiary's job title, job duties, work site, start date with the company, and current salary. The FDNS officer could also ask to review certain documents such as tax returns, quarterly wage reports, job descriptions, pay stubs, and W-2 tax forms. In addition, the officer may inquire about past H-1B visa petitions the employer has filed and ask for a tour of the entire work site and request to take photographs of the work site. Further, the officer may speak with the H-1B employee to confirm employment dates, job duties, salary, and work location; education background and previous employment experience; current address and information about dependents; and whether the H-1B employee paid any of the H-1B filing fees and attorneys' fees. The officer may also ask to speak with the H-1B employee's direct supervisor or a co-worker to further confirm the H-1B employee's and employer representative's statements.
What to Expect After a Site Visit
At the end of the site visit, FDNS officers do not provide employers with a decision because they themselves do not determine the validy of the petition. Instead, following the site visit, the FDNS officer will review the information to determine whether further investigation is needed. The FDNS officer reports the findings to USCIS, which uses the information to affirm the approved petition, approve the pending petition, deny the pending petition, or re-open the previously approved petition for possible revocation.
USCIS has stated, "If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, [USCIS] 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 Immigration Customs and Enforcement (ICE) for criminal investigation."
If the petition is deemed fraudulent, H-1B employees who are in the United States may be placed in removal proceedings. A formal criminal investigation and prosecution for fraud could also lead to criminal or civil penalties against the employer. A finding of fraud will also impair the employer's ability to sponsor other employees for immigration benefits in the future. Fraud includes any intentional misrepresentation, falsification or omission of a material fact in the H-1B petition and supporting documentation. For example, the employer does not actually exist; the H-1B employee is performing duties that are substantially different from those described in the H-1B petition; or the H-1B employee is not paid the required wage that was listed in the petition.
How to Prepare for a Site Visit
Suprise, unannounced H-1B site visits can be intimidating for many employers. But employers can take certain steps to make these visits as comfortable as possible. They include the following:
1) Review and Maintain Your H-1B Files
Before the H-1B petition is filed, check it carefully to ensure the information provided to USCIS is true and accurate. Review the Labor Condition Application public access file for each H-1B employee to confirm that it contains all required documentation.
Retain complete copies of H-1B petitions and supporting documentation and become familiar with them. Employer representatives should not guess the answers to specific questions during a site visit. Instead, they should check the file to determine the correct response and follow-up with the FDNS Officer if needed.
2) Establish a Site Visit Policy
Designate an employer representative to accompany the FDNS officer though the site visit and address questions about the petitioner, the petition, and the beneficiary. Employees such as the receptionist and HR team should know to contact this person when the FDNS officer arrives for a visit. A back-up contact person is also recommended in the event that the employer representative is unavailable.
Inform the H-1B employees that a site visit is possible. They should refrain from speaking to the FDNS officer without the employer representative's knowledge.
If the H-1B employee is placed at a client's facility, inform the client that a site visit is possible. The client should know the terms and conditions of the H-1B employee's placement at its facility, including the agreement between the H-1B employer and client for the placement.
3) Request the FDNS Officer's Contact Information
When the officer arrives for a site visit, the employer should obtain his name, title and contact information, and ask for his business card and identification.The officer will typically want to speak with the H-1B beneficiary and the person who signed the petition. If these individuals are unavailable, the officer should be asked to provide contact information for a follow-up discussion.
4) Involve Your Immigration Attorney
Whenever possible, the employer's immigration attorney should attend the site visit, either in person or via teleconference. FDNS will allow counsel to attend by telephone if requested, but will not usually reschedule a site visit for counsel to be physically present during the site visit.The employer may also call the attorney for guidance during the visit.
5) Keep a Detailed Record of the Site Visit
The employer should take detailed notes during the interviews and keep a list of the documents that were provided to the officer. The employer representative should accompany the investigator if he wishes to tour the work site or meet with the H-1B employee or other employees. Do not allow the officer to roam freely throughout the employer's place of business or work site.
6) Amend or Withdraw H-1B Petitions Whenever Appropriate
If there are substantial changes in work duties, location, or salary, the employer should contact immigration counsel to determine whether an amendment to the H-1B petition is needed. In addition, the employer must withdraw the H-1B petition if an H-1B beneficary's employment terminates before the end date listed on the H-1B approval notice. This involves written notification to USCIS.
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