Written by Colleen F. Molner, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
The U.S. Citizenship & Immigration Services (USCIS) created the Office of Fraud Detection and National Security (FDNS) in 2004. It is funded with the $500 Fraud Prevention and Detection fee that petitioning employers must pay when initially petitioning for an H-1B or L-1 worker.
The stated mission of the FDNS is 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. The FDNS employs site inspectors who conduct worksite visits at U.S. companies and other entities that employ foreign workers through the H-1B and L-1 visa program. In 2009, the FDNS launched the H-1B assessment program to conduct a specific audit of the H-1B program.
The following is information that employers should know about FDNS’s use of the H-1B assessment program and how to prepare for a site visit.
Many of the FDNS H-1B site visits are unannounced, and they 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. The FDNS officer will typically request to speak with the employer’s representative who signed the Form I-129; however, since the site visit is unannounced and the employer’s representative may not be available, the FDNS officer can ask to speak to another employer representative, such as a Human Resources Manager. The FDNS officer may also request to speak with the H-1B employee at some point during or after the worksite visit.
The H-1B worksite visits typically last for less than one hour. During the site visit, the FDNS officer will normally have a copy of a specific H-1B petition that was filed and will verify information contained in that petition. Specifically, the FDNS officer will ask the employer’s representative for information about the company, including, but not limited to:
- The employer’s business, locations, number of employees and recent layoffs;
- The employer policies with respect to immigration matters including repayment agreements, H-1B hiring policies and green card policies;
- Details about the specific H-1B petition being investigated including job title, job duties, work location, salary, work schedule, dates of employment, etc;
- Qualifications of the H-1B employee including education, work experience and prior immigration history;
- Information about the number of H-1B petitions that the employer has previously filed; and
- Information about the employer’s immigration counsel.
The FDNS officer may also request to review a copy of the H-1B nonimmigrant’s most recent paystub, last Form W-2, and 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. In addition, the FDNS officer may request a confirmation that the signature on the Form I-129 petition is genuine. However, FDNS officers typically do not request to review the Labor Condition Application (LCA) Public Access File.
After speaking with the employer’s representative, the FDNS officer may request a tour of the employer’s facility, and they may take photographs of the facility. The officer may also request to speak with and interview the H-1B beneficiary, at which time the officer may ask about their job title, job duties, responsibilities, employment dates, position location, requirements for the position, their academic background and previous employment experience, their current address and information about their dependents as applicable.
The FDNS officer may also request to speak with a colleague or manager of the H-1B beneficiary to verify the same information about the H-1B worker. After conducting the interviews and receiving any requested documentation, the FDNS officer will conclude the site visit.
Although many of the H-1B site visits are unannounced, FDNS officers will not typically reschedule a site visit, and the employer and designated company representative should comply with the FDNS officer’s requests at the time of the visit, if possible. The employer can request that its immigration attorney be present during the site visit, but FDNS officers will not typically reschedule a site visit for when an attorney will be available. Instead, FDNS officers allow counsel to be present by phone if requested by the employer.
If the beneficiary has been placed at a client site not controlled by the petitioning employer, the petitioning employer should notify the end user client about the current FDNS H-1B assessment program and the possibility of a site visit. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the identity of the H-1B employer and review the terms of the assignment. The petitioning 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 designated company representative can participate either in person or by telephone.
To prepare for and respond to an FDNS H-1B site visit, consider:
- Designate a company representative as the primary person to respond to an inquiry by an FDNS officer. Additionally, employers should select an alternate contact in case the primary contact is absent. Employers should also alert their receptionists, security guards and corporate counsel of the possibility of an unannounced worksite visit and everyone who might be involved in a worksite visit should be educated as to what to expect and how to react should one occur.
- Employers should conduct their own internal review of the employment of all of their H-1B/L-1 workers to be sure that their job duties, work sites and salary are consistent with the petition the company filed with USCIS. In addition, employers should review the Public Access File for each H-1B worker to be sure that it contains all of the documents required by the regulations that pertain to the Labor Condition Application (LCA), and to verify that the company is complying with all representations made in the LCA.
- Request the name, title, agency and contact information for the site investigator (i.e. a business card). The company representative should also not speak with government agents or contractors without a witness present.
- Retain complete copies of the I-129 petitions and supporting documents in a confidential file maintained by the designated company official, and review this information prior to the meeting with the officer. It may also be beneficial to provide copies of the I-129 petition and supporting documents to the beneficiary relating to the nature of the job opportunity, terms and conditions of employment and the beneficiary’s education and prior work history.
- If the FDNS officer requests information about the employer and the employer cannot provide accurate information without further research, the employer should indicate this to the FDNS officer and not “guess” about any information provided during the visit. The employer may also indicate that they will follow up with the FDNS officer to provide accurate information after such information is obtained.
- The company representative should accompany the FDNS officer during their review of the facilities and request to be present during the interviews of any of the company’s employees.