The U.S. Citizenship and Immigration Services (USCIS) has launched a new program in which it is making unannounced site visits throughout the United States to monitor and detect fraud among H-1B employers and their H-1B employees.

In this article we explain what happens during these site visits and your rights and obligations under the law so you know what to expect if USCIS shows up at your office.

Background

USCIS established the Fraud Detection and National Security Office (FDNS) in 2004 with a mission to combat immigration benefit fraud. The unit is funded through the $500 fraud fee your employer pays as part of the H-1B application process.

The information collected is used to develop databases to identify factors and trends that could indicate fraud as well as to initiate investigations of employers suspected of H-1B fraud. FDNS works with and is the main source of information for other governmental agencies, including Immigration Customs and Enforcement (ICE).

Will my employer be visited?

It’s likely. The FDNS has approximately 650 immigration officers, researchers and analysts throughout the United States who are ready to drop in unannounced to audit your employer’s H-1B program. The FDNS also has contracts with many private investigation firms for conducting site visits on behalf of the government.

In addition to the cases referred as part of the regular H-1B adjudication process, the USCIS Vermont and California Service Centers have referred approximately 40,000 cases to the FDNS as part of the H-1B assessment program.

Most on site visits have occurred after the petition was approved; however a site visit may occur as part of the adjudication process, in particular when the case involves an H-1B extension with the same H-1B employer.

Does the FDNS need permission for the visit?

No. FDNS can show up unannounced at any time and does not need your employer’s permission to investigate the work site. In fact, the Form I-129 H-1B application informs the employer USCIS conduct a site visit to verify the accuracy of the information contained on the form.

Where will this visit take place?

At the H-1B employer’s principal place of business, and/or at the H-1B employee’s work location, even if not controlled by the H-1B employer. In other words, if you work off-site for a third-party client on behalf of your employer, the FDNS investigator can inspect the client’s site.

May your employer request legal counsel during the on-site visit?

Yes. If your employer does not have an attorney on site, however, FDNS is not required to wait until one arrives. FDNS officers typically will not reschedule a visit to accommodate the lack of physical presence of an attorney. The FDNS will allow the attorney to participate by phone, if requested.

Who will be involved during the site visit?

The FDNS officer will ask to speak to the employer’s representative who signed the Form I-129 petition. If this person is unavailable, then another employer representative, such as a human resources manager, will be asked to speak with the FDNS officer.

What verification methods can be used?

Per the instructions for the USCIS’ Compliance Review and Monitoring Methods, verification methods may include:

  • review of public records and information;
  • contact via written correspondence, telephone, the Internet, facsimile or other electronic transmission;
  • unannounced physical site inspections of residences and places of employment; and
  • interviews

What will happen during the site visit?

The purpose of the visit is to verify information about one specific H-1B petition regardless of the number of H-1B petitions filed by the employer. The FDNS officer should have a copy of the petition.

The officer will interview the employer about its participation in the H-1B program. In particular the officer may request:

  • specific information about the company, including, the employer’s business, locations, number of employees and number of H-1B petitions previously filed;
  • copies of the company’s tax returns, wage reports, and other company documents to verify that it is a bona fide business;
  • confirmation that the signature on the Form I-129 petition is genuine; and
  • information about the employer’s immigration counsel.

The employer also will be asked for information about the H-1B employee, including his or her title, job duties, work location and salary. In addition, the officer may also request the H-1B employee’s most recent pay stub and last Form W-2.

Finally, the FDNS officer may also tour and take photographs of the employer’s facility.

Following these interview, officer will normally request to interview the H-1B employee and a manager or colleague of the H-1B employee.

What happens during the interview of the H-1B employee?

As part of the information verification process, the H-1B employee may be asked about his or her:

  • job title, duties and responsibilities, employment dates, and location of work;
  • position requirements;
  • academic background;
  • previous employment experience;
  • current address; and
  • dependents, if any.

How long does this site visit last?

Usually less than one hour, including interviews and facility tour.

What happens after a visit?

If there is any derogatory information, USCIS is supposed to inform the employer and give the employer the opportunity to respond before taking any adverse action such as revoking the H-1B petition. USCIS states that if such information is not provided by USCIS when it issues the adverse action, the employer’s recourse is to request a copy through the Freedom of Information Act (FOIA), which is not a quick process.

What can you do if you suspect a problem during a site visit?

If you or your employer is under investigation, you should consider contacting a competent attorney if you want to ensure your rights are protected under the law.

Additional Information

For more H-1B employee rights information, please visit the blog’s main page at http://h1blegalrights.com/. For information about Legal (Attorney) Services for H-1B employees, please visit here.

To learn more about H-1B rights and options, please see these posts:

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This blog is authored by Employee and H-1B Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies among situations. If you want legal advice for your specific circumstances, you must consult with an attorney.