As many of our clients have experienced first-hand, unannounced H-1B site visits are well under way through USCIS' Office of Fraud Detection and National Security ("FDNS"). Such 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 filed Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer).
While one may question the legitimacy of such an intrusion on the workplace without warning, FDNS has indicated that it does not require a subpoena to conduct such an unannounced site visit. This assertion is based on USCIS' interpretation of the regulations governing the filing of H-1B nonimmigrant petitions. More specifically, USCIS has determined that it is permitted to make such unannounced inspections based on the language contained in the instructions to the Form I-129 Nonimmigrant Petition (now on page 23) which, by executing the document, the petitioner and beneficiary consent to allow USCIS to verify the information contained therein. Specifically, the instructions provide for "unannounced physical site inspections of residences and places of employment and interviews".
So what is an employer to do when confronted with such a surprise visit? Importantly, the employer may request that immigration counsel be present during the site visit. Thus far, such a request has been met with a varying response from FDNS. While some officers (who, by and large, are contractors hired by USCIS) are willing to accommodate such request, other FDNS officers have refused to reschedule the site visit to allow for counsel to be physically present. It has been our experience, however, that FDNS officers have had no objection to counsel being present by telephone if requested by the employer.
How may an employer be proactive in anticipation of such an unannounced visit? Of course, the best advice is to be fully compliant with the requirements of the H-1B program. During a typical H-1B site visit, the FDNS officer will likely seek to verify the information contained in a specific employee’s H-1B nonimmigrant petition, regardless of the number of H-1B petitions filed by the employer. The FDNS officer will normally have a copy of the petition and will likely request to speak with the employer's representative who signed the Form I-129 or, if such representative is unavailable, with someone in the Human Resources Department (or, in the case of a small business, someone with knowledge of the company’s filings). Typical questions or document requests may include: specifics about the company (i.e. business locations, number of employees); the most recent quarterly wage report; confirmation that the signature on the Form I-129 petition is genuine; detailed information about the specific H-1B nonimmigrant's title, job duties, work location, and salary; a copy of the H-1B nonimmigrant's most recent paystub and last Form W-2; information about the number of H-1B petitions that the employer has previously filed; information about the employer's immigration counsel; and/or the opportunity to review the H-1B Public Access file.
It has been our experience that the FDNS officer will also request an interview with the H-1B beneficiary. (In addition to counsel being present, it is our advice that a company representative witnesses the interview of the beneficiary). During this interview, the 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 dependents, if any. For more details on what to expect during such a site visit, please click here to review a related article from our Immigration Law Group’s September 2009 e-newsletter.
In sum, those employers who abide by the rules of the H-1B program, and are diligent in maintaining proper records (including a Public Access File), should not fret over the possibility of an unannounced intrusion by FDNS. Thankfully, our clients who have been subjected to such visits were found to be in full compliance with the program. And while one may question the wisdom of the substantial resources being expended for random audits, the reality is that the unannounced visits by DHS and DOL are a sign of the times -- a by-product of some recent abuses of the H-1B program amid the climate of increased worksite enforcement by the current administration. Perhaps all of this is an indicator that a comprehensive immigration reform bill is just around the corner. We can only hope!
For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's "Corporate Immigration Law News" Blog.
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP