Government Worksite Visits
Government Worksite Visits – Oct 5
Dear Garfinkel Immigration Law Firm Client,
The U.S. Citizenship and Immigration Services (USCIS) recently started conducting worksite visits at U.S. companies and other entities that employ foreign workers through the H-1B and L-1 visa programs. The USCIS’ Division of Fraud Detection and National Security (“FDNS”) has engaged outside contractors to undertake investigations to verify the information contained in the employer’s petition submitted to the government. This initiative is funded through the $500 fraud fee that petitioning employers pay with the initial petition on behalf of an H-1B or L-1 worker.
The Department of Homeland Security has placed petitioning employers on notice of the possibility of such investigations and has stated that it has the right to verify any information submitted to establish eligibility for an immigration benefit based on language contained in the instructions to the Petition for Nonimmigrant Worker (Form I-129).
In addition, the U.S. Immigration and Customs Enforcement (ICE) recently announced that it is launching an initiative to audit the I-9 records of businesses across the United States. ICE is conducting this campaign of increased enforcement to ensure that the hiring records of U.S. businesses are in compliance with the laws and regulations that pertain to employment eligibility.
These inspections by USCIS and ICE investigators typically come in the unannounced appearance of an FDNS investigator at a place of business, or in the receipt of a Notice of Inspection (NOI) from ICE informing the employer of the agency’s intention to conduct an I-9 audit.
Below please find a Question and Answer that is intended as guidance in the event an FDNS investigator visits your business’s premises, or in the event that your company receives a Notice of Inspection with regard to your I-9 records.
Questions and Answers
What do you recommend as the first step in preparing for an FDNS or ICE investigator?
We recommend that you designate in advance an individual as the primary person to respond to an inquiry, and select an alternate contact in case the primary contact is absent. It is also a good idea to alert your receptionist and corporate counsel of the possibility of an unannounced worksite visit. Everyone who might be involved in a worksite visit should be educated as to what to expect and how to react should one occur.
If an investigator contacts our company, what should I do first?
Ask the investigator for identification and record the individual’s name, title, agency, and contact information. You may also ask for his or her business card and request information about the nature of the inquiry. Most of the time, investigators conducting surprise visits are from the FDNS and will not have a subpoena or search warrant, but instead will wish simply to talk to someone of authority at the company, as well as the H-1B or L-1 worker. We recommend that you first speak with an attorney at our firm or your corporate counsel before answering any of the investigator’s questions. In addition, we strongly recommend that you confirm in advance that the H-1B/L-1 employees are performing the functions described in their petitions and that the employer is following all provisions of any applicable Labor Condition Application (LCA).
May I request that the investigator return later and attempt to reschedule?
If the investigator is from ICE:
An I-9 audit should be preceded by a written “Notice of Inspection” giving at least three days’ notice. If the scheduled time is inconvenient, you should contact ICE promptly to reschedule within a reasonable timeframe. You should then contact our office immediately so that we can assist you in preparing for and responding to the audit.
If the investigator is from FDNS:
The law does not specifically provide for any period of notice for investigations conducted by FDNS. It is our understanding that investigators from FDNS expect to conduct their inquiries on that day that they arrive. Your company should not, however, be unreasonably disrupted by the unannounced visit of an FDNS investigator. If the investigator’s visit has not come at a convenient time for you, or the designated contact is not available, we suggest that you politely request the investigator to return at a different day or time, and offer dates and times to the investigator for when he or she may return.
What will happen during an FDNS investigation?
During an FDNS visit, the investigator typically asks to meet with a company representative as well as with the H-1B or L-1 worker. Frequently, the investigator will be interested in viewing the actual worksite. We recommend that the representative at your company accompany the investigator at all times and take detailed notes on the questions asked of the company and employee. You should not allow the investigator to speak alone with any employee, either the H-1B/L-1 worker or any other employee, nor should you permit the investigator to roam the premises unescorted. Please refer to the document “FDNS Worksite Visit Guidance” at the end of this memo for further detailed guidance.
What questions will the investigator ask?
In general, the investigator will seek information relating to the petitioning employer; the relationship between the petitioner and beneficiary; whether the beneficiary is or will be employed in the capacity described, and at the location(s) specified in the petition; and whether the beneficiary has the requisite experience and/or qualifications.
More specifically, questions from FDNS investigators have focused on the following areas:
Details about the employer including ownership structure, financial information, number of employees, office locations in the U.S., number of H and L petitions, and recent layoffs;
Employer policies with respect to immigration matters including repayment agreements, H-1B hiring policies and green card policies;
Details about the specific petition under investigation including job title, duties, day-to-day functions, salary, work schedule, work location(s), and dates of employment; and
Qualifications of the H-1B or L-1 employee including education, work experience, and prior immigration history.
How can I prepare our company in advance for a visit from an investigator from FDNS or ICE?
The best way to prepare for either an unannounced visit by the FDNS or the receipt of a Notice of Inspection from ICE is as follows:
Conduct your own internal review of the employment of all of your 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, you 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).
You should also verify that the company is complying with all representations made in the LCA.
Our firm is well versed in the laws and regulations that govern LCAs as well as the documents that should be maintained in the Public Access File. We can assist you in conducting your own internal audit to ensure that your company has complied with these regulations.
Conduct your own audit of the company’s I-9 records to ensure that they have been filled out properly and are up to date. Our firm can offer you detailed guidance as to how I-9s should be prepared and filled out, and we can also assist with reviewing your I-9 records.
Select a person from Human Resources as well as at least one other individual from the company who should be prepared to meet with any investigator should an unannounced visit occur. Provide those individuals with this memo and the checklists we have included so that they can be additionally prepared during any investigator’s visit.
Speak with your corporate counsel’s office to advise them of the possibility that your company may get a visit from USCIS or a Notice of I-9 Inspection from ICE. Make sure you have the name of a specific attorney from your corporate counsel’s office and know how that attorney can be reached at all times. Feel free to contact one of the attorneys at our firm with any questions or if we can assist.
Are any other government agencies investigating H-1B petitions?
In addition to employer worksite visits by USCIS and ICE, the U.S. Department of Labor (DOL) is contacting H-1B employees directly through an email questionnaire requesting details about many aspects of their employment and the employer’s compliance with the terms of the LCA. This questionnaire is attached for your review.
We have also been advised that individuals associated with the Kentucky Consular Section of the U.S. State Department have contacted selected petitioners to verify information contained in some nonimmigrant visa petitions which have been returned from U.S. consulates abroad.