Site visits from USCIS, DOL, FDNS, and ICE have increased lately. Some are routine, and some stem from how H-1B visas are processed. Some stem from the failure to answer RFES or withdrawal of cases after RFES has been issued. Participating in site visits is voluntary. Therefore, before saying or participating in any part of an investigation, engage or speak with an immigration attorney who has experience in site visits and examinations. Here are some quick rules to be best prepared for site visits.
A. File H-1Bs only if there is work for the beneficiary when filing the H-1B. As the approval of cap-based visas is months after filing. Making this assessment should be made with an evidence-based estimation as it may become an issue in an investigation when having a project plan that lays out a company’s prospective services which can rely on current and historical clients and projects and negotiations with prospective clients to make a good faith statement that the work is there for the company for the prospective employee.
B. Develop a project plan for each project; you will work on laying out the number of employees in their positions with detail on what they will be doing. This alternative can be better than the previously used third-party letters because it allows the petitioner to law out what its employee will do, how it complies with the right to control, layout supervision techniques, and billing. It is good to send this to the 3rd party as investigators may interview them. Sharing it with them can serve two purposes. Most importantly, it establishes the company’s intent and sets a date they did it. Second, the employer can refer to it when the investigator asks questions. If the third party deviates from the project plan, it could be a defense that investigated the company was not acting fraudulently.
C. Provide a copy of the job description to the beneficiary and have them sign and date it. This way, the company has indicated its expectations, and the beneficiary will provide the same answer for their duties instead of guessing and possibly creating a contradictory response.
D. Draft language into an employee handbook that addresses issues like the right to control and the employer of the petitioning company.
E. If a company employee is contacted by an investigator, immediately ask for an ID and card. Keep the card or take a picture or write down the information and call the office to verify whom they say they are. Ask politely to do this.
F. Call your immigration attorney. If available, pass the telephone to the officer and let them talk to your attorney.
G. If an attorney is not available, ask the officer if they may postpone the meeting to discuss with an attorney and inform them the attorney will contact them to set up an appointment.
H. Inform all employees to request an opportunity to discuss with an attorney before discussing anything with an investigator. Provide employees with the attorney’s contact information.
I. Inform employees to contact a company point of contact immediately.
J. No one should talk to an investigator without an attorney present. Always make sure a witness is present if an investigator visits unannounced.
K. Immediately write everything the investigators say and provide it to the attorney.
L. Do not answer any emails or sign any document until you have had an investigation experienced Immigration attorney review and collaborate with you.
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