The U.S. Citizenship and Immigration Services (USCIS) continues efforts to ensure employers of H1B and/or L-1 workers are compliant by visiting the worksites of selected foreign national workers. These site visits, which typically are carried out by Fraud Detection and National Security (FDNS)officers, generally are unannounced, meaning that H1B and L-1 employers and employees should be prepared for such potential visits, and have an idea of what to expect.
Employer May Request Identification from FDNS Officer
An FDNS officer should have proper identification and USCIS credentials, and should show these to the employer. Employers should always ask for the identification of any persons claiming to be acting on behalf of the government. The officer will want to speak with the H1B or L-1 petitioner (the individual who signed the petition). If s/he is not available, the officer will seek out an appropriate alternative individual, who has authority within the company.
Employers should discuss the possibility of such visits with their human resources (HR) or other appropriate personnel. If an employer wishes to have an attorney present, the inspector should be informed and additional time requested, if needed.
Inspector’s Observations on Employer’s Bona Fides and Operation
The inspector will look at the public aspects of the employer’s premises to determine if the address on the petition appears to be that of the petitioning organization. The signage will be examined for the name of the business. Neighboring businesses or residents may be asked to verify the location and existence of the business. The type of premises will be noted, and photographs may be taken.
With permission from an organizational representative, the officer may tour the facilities. The purpose is to determine if the business appears to be legitimate and engaged in appropriate business activities.
Employer Questioned on Employee, Job Duties, and Other Details
The officer will ask the selected company representative general questions about the H1B or L-1 worker. These questions will cover information taken from the petition and will include details of the position, duties, and terms of employment.
During the visit, the officer will attempt to verify whether the beneficiary currently is employed by the sponsor. If the individual is employed by the company, the USCIS will ask for proof. If the individual is not employed by the company, the USCIS may inquire as to whether the employer has information about the foreign national’s location and current employment. This is one of several reasons it is important for H1B and L-1 employers to properly document employment terminations. However, employers are not responsible under the law for tracking their former employees following proper termination.
If the company employs any H1B workers, the officer may also request to examine the public access files. Although the U.S. Department of Labor (DOL) has the primary responsibility for ensuring that these files are properly maintained, the USCIS also has the right to inspect them, as these files are required to be available to members of the public.
H1B or L-1 Worker Will Be Questioned
The officer will want to speak to the H1B or L-1, who will be asked to show valid identification. The purpose of this discussion is to determine if the beneficiary’s employment is consistent with the terms and conditions in the petition. The beneficiary will be expected to speak knowledgeably about the position and employment. For H1B workers in particular, there may be questions regarding the foreign national’s educational background. The officer also may inquire into payments made by the employee in connection with the filing of the petition.
Further Inquiry of Employer May Be Recommended
As part of the inspection process, the officer will attempt to verify whether the employee is being paid the required salary, and performing the employment duties set forth in the petition. At the conclusion of the officer’s report, a recommendation will be made regarding whether further inquiry is appropriate. The recommendation will have to be explained in the report.
Employers should anticipate and prepare for this type of site inspection before an FDNS officer arrives. A policy and protocol should be in place for such site inspections. Appropriate employees need to be aware of this inspection program. To the extent that such inspections may cause alarm among employees who are not involved, some discussion or explanation may be advisable beforehand. Administrative site visits of this type generally are random. They are not necessarily an indication that a company has engaged in wrongdoing. Company representatives may wish to discuss matters related to these inspections with a knowledgeable Counsel