H-1B AND L-1 FDNS SITE VISITS
In 2009, U.S. Citizenship and Immigration Services (USCIS) began its Administrative Site Visit and Verification Program (ASVVP). Under the program, site visits are conducted by the Fraud Detection and National Security directorate (FDNS) of USCIS. FDNS conducts site visits for religious worker petitions, H-1B petitions, L-1 petitions.
An employer that signs Form I-129 agrees that “any supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” FDNS site visits are voluntary, but it is strongly recommended that employers cooperate should one occur. Employers should also be advised to contact their immigration attorney immediately should an FDNS investigation take place. Though most site visits are unannounced and FDNS will not reschedule a visit to accommodate counsel, counsel is permitted to be present if logistically possible and might be permitted to participate via telephone.
– WHAT HAPPENS AT AN FDNS SITE VISIT?
When an FDNS inspector appears at the employer premises, he or she will likely ask to speak with the Human Resources (HR) manager or the company official who signed the H-1B petition. Site inspectors verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS; verify the existence of a petitioning entity; take digital photographs; review documents; speak with organizational representatives to confirm the beneficiary’s work location, employment workspace, hours, salary and duties.
Site inspectors report the results of their site inspections to FDNS, which will review the information to determine whether the petitioner and the beneficiary have met or continue to meet eligibility requirements.
– WHAT HAPPENS AFTER SITE VISIT?
An FDNS Officer will review the information gathered by the site inspector, and determine whether there is a need to conduct an administrative inquiry. If so, and following that inquiry, FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF). The ISO will use the SOF to determine whether or not the petitioning organization qualifies for the benefit sought. If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO 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 ICE for criminal investigation.
– WHAT ARE THE PRIMARY REOCCURRING COMPLIANCE ISSUES?
- Petitioner (business) does not physically exist
- Petitioner misrepresented the details of the beneficiary’s employment
- Beneficiary is not or will not be employed in the location or area certified
- Beneficiary is not or will not be performing the duties specified on petition
- P petition
- Petitioner is not paying the beneficiary at the certified wage
- Beneficiary is not or will not be employed by the petitioner
– HOW TO PREPARE AND DEAL WITH FDNS SITE VISIT?
- Develop internal policy to deal with an unannounced FDNS inspection.
- Discuss the likelihood of unannounced FDNS inspection during new employee orientation and guide new foreign national employee(s) in valid nonimmigrant status on what to expect and how to respond to the site inspector’s questions.
- Make sure employer’s HR representative has complete and updated data of all employees in H-1B and L-1 nonimmigrant status.
- Ensure that the foreign national beneficiary is aware of the details contained in the approved petition.
- Employer’s HR representative should record the name, title, and contact information of the site inspector to ensure that any post-visit communications are directed toward the appropriate agent.
- Employer’s HR representative should cepresentative should contact inside or outside immigration counsel immediately if a site visit occurs.
- If during the site visit, employer’s HR representative or beneficiary is unsure of an answer to a question, they should ask for additional time and offer to follow-up with the officer, rather than providing false or incorrect information.