Third-party worksites are experiencing more unannounced site visits, likely because of the ITServe case prohibiting adjudicators from inquiring into details of third-party placements. The Covid pandemic also played a role, as Fraud Detection and National Security (FDNS) officers could not do visits and now have an expanded budget.
Another contributing factor is the Department of Homeland Security’s proposed regulation to modernize H-1B requirements and oversight, stating that it will issue guidelines for site visits and verification for dependent employers where fraud may be present.
In any case, FDNS could knock on your door unannounced and ask to visit your company. They may call your foreign national employees or show up at their homes.
If FDNS concludes there is fraud, it refers the case to Immigration and Customs Enforcement (ICE) for consideration of criminal investigation and prosecution. ICE has 60 days to accept or decline.
In cases where ICE declines to prosecute, FDNS forwards the administrative findings to United States Citizenship and Immigration Services (USCIS) officials to deny or revoke the petition or application.
Build H-1B Petitions with Site Visits in Mind
Pursuant to ITServe Alliance, Inc. v. Cissna, the negotiated memo states petitioners do not need to include third-party contracts, schedules, or letters in H-1B petitions. However, there has been an uptick in investigations where officers are asking beneficiaries and third-party clients about the beneficiary’s position.
As part of the H-1B approval strategy, it is critical to analyze the employer-employee relationship.
When FDNS conducts unannounced site inspections they may review the Labor Conditions Application (LCA) and speak with petitioning company officials, employees, and third-party clients about the details. All parties must know the content of the LCA, and it must accurately reflect the position.
Be Prepared for Site Visits
USCIS has recently sent 40,000 H-1B cases to FDNS, which has approximately 650 immigration officers, research specialists, and analysts who contract with private investigation firms to conduct site visits on behalf of FDNS.
What third-party worksites with H-1B employees can do to prepare for FDNS site visits:
- Accurately draft job duties and make sure your employee understands them.
- Routinely analyze or audit your H-1B petitions to ensure accuracy of the job, beneficiary’s status, and location.
- Investigate issues that do not seem accurate.
- If you cannot resolve H-1B issues, confer with an attorney about amending or withdrawing the petition.
- Make sure you have a Public Access Folder (PAF) for every LCA.
- Designate a person to serve as a Point of Contact (POC) for site visits.
- Retain complete copies of H-1B petitions and make them readily available to the point of contact for a site inspection.
- Appoint one or two employees as a backup in case the lead POC is not available.
- If FDNS arrives, inform reception or admin to get the POC or backup employees who will serve as their place.
- Conduct preparation interviews with the petitioner.
- If you know there will be a site visit, also have a preparation interview with the beneficiary.
What to Do During Site Visits
- Write down the name, title, and contact information of the investigator.
- Find out which agency is conducting the worksite visit. Note: other governmental agencies like ICE, USCIS, or DOL may also visit the worksite.
- Immediately contact your attorney or legal counsel if an FDNS or other investigator arrives unannounced at your work site.
You have a right to have legal counsel present before you speak with an investigator. Inform the investigator you would like to have your attorney or legal counsel present.
- Before providing any information or documentation, ask for the inspector’s business card, ensure it contains current contact information and confirm their credentials.
- Do not speak with the investigator without a witness present. The employer’s representative can request that the company’s immigration attorney be present during the site visit. However, the officer is not likely to reschedule to accommodate an attorney’s presence. In this case, request that counsel be present by phone.
- If you speak with the officer without counsel present, make sure another witness is in the room. Both the witness and the interview subject should contact counsel as soon as possible following the interview.
- If the investigator requests access to secure areas not accessible to the public, politely explain that the particular area is not accessible and suggest a less-sensitive part of the work site for the officer to tour.
- If the investigator requests information that the POC cannot provide right away or without further research, inform the investigator that it is momentarily unavailable and give you some time.
Do not guess about any answer to any question or any document.
- Accompany the FDNS officer during the tour of the facility. Request to be present during all interviews with employees. The officer may deny this request on the ground that they will get more candid responses without the POC. If the investigator refuses to let you be present, record that refusal in the notes.
- Take notes of all questions, information, and documents requested by the FDNS officer and the information and documents provided to the officer. Take notes of each place the FDNS officer visits at the facility and whether they took pictures. List the people the investigator interviewed and to whom they may have spoken.
- FDNS will use any negative information found during the site visit to deny or revoke a petition. They may also refer negative information to ICE for further investigation, leading to the possibility of civil and criminal penalties.
- If an immigration attorney is not present, immediately contact them when the site visit is complete.
- Have everyone that observed or participated in the site visit prepare detailed notes and provide them to your immigration attorney.