Immigration-Related Worksite Enforcement Visits to Increase in 2018
As part of the Administrative Site Visit and Verification Program started in July 2009, USCIS is increasing unannounced site visits to work places employing H-1B, L-1A and L-1B visa beneficiaries. This post goes through the purpose, consequences, and procedure that occurs with the visits.
U.S. Citizenship and Immigration Services (USCIS) is increasing job site visits as part of their Administrative Site Visit and Verification Program. Begun in July 2009 as an additional way to verify information in certain visa petitions, under this program Fraud Detection and National Security (FDNS) officers make unannounced visits to collect information as part of a compliance review at the locations where foreign nationals are employed. They question the foreign national and other employees at the work location, and if the information they find does not match the information provided on the visa applications, or if it appears that the foreign national employee is not complying with the visa requirements, a fraud investigation may be initiated.
What is the Purpose of the Site Visit Program?
The stated purpose of the program is to verify information about H-1B and L-1 petitions, two of the most common work visas, which are for workers in specialty occupations requiring a bachelor’s degree and for international company transferees, respectively. Immigration lawyers have reported a marked increase in site visits to companies and workplaces, likely as a result of the Trump administration “Buy American and Hire American” executive order signed in April 2017 that requires the federal government to come up with ways to ensure that U.S. workers are prioritized over foreign nationals. The order specifically targets the H-1B visa program, but increased sites visits to L-1A and L-1B visa beneficiaries at their work places have also be reported.
Inspectors may request information about the company’s activities and financial information and employees’ duties, reports, and salary, and any other relevant information in the visa petition. Inspections are intended to accomplish the following:
Verify the information, including supporting documents, submitted with the visa petition;
Verify that the petitioning organization exists;
Review public records and information on the petitioning organization;
Review documents; interview personnel to confirm the beneficiary’s work location, physical workspace, hours, salary and duties; and
Interview the foreign national visa beneficiary.
What Are the Consequences of a Site Visit?
Following a site visit, if the FDNS officer determines that the employer or the employee has misrepresented information about the company, the duties or qualifications of the employee, or any of the other material facts on a visa application, this can result in a fraud investigation and eventually in the revocation of the visa, and may affect the visas of all the foreign national employees of that company. If necessary, the investigation may be referred to Immigration and Customs Enforcement (ICE). These investigations may result in civil and criminal penalties for both the employer and employee, and if an employee is determined to have committed immigration fraud they may be banned from the United States permanently. It is therefore very important that employers and their employees ensure that all visa applications are accurate and truthful and that compliance with visa requirements is maintained at all times.
How Should an Employer Respond to a Surprise Site Visit?
Compliance with the immigration inspection is voluntary, but full cooperation is very highly recommended. The employer should contact their immigration attorney immediately when visited by USCIS or ICE so that the attorney can help them respond to any questions or requests. The employer should ask the inspector who they are coming to see, and politely inform the inspector that they would like some time to prepare the requested documentation and information before responding to questions or allowing the inspector access to their premises or employees. If possible, the employer and visa holder should review the employee’s visa petition before speaking to the inspector. After a site visit the officer may follow up by phone, fax, or email and request specific documentation and information. The attorney can help the employer properly document their activities and compliance and respond to follow-up requests.
How Should Employers and Visa Holders Prepare for Future Site Visits?
In anticipation of future visits, it is essential that U.S. companies with employees with nonimmigrant visas (particularly H-1B, L-1A, and L-1B visas) have a plan in place so employees know how to respond when an FDNS officer appears. Employers should review all visa petitions ahead of time to ensure they are familiar with the information therein and that it remains accurate. The visa holders themselves must also review their petitions, and pay special attention to their job title, job duties, reports, managerial responsibilities, job location(s), and salary. If the visa application requires the submission of a business plan, such as an L-1A for a new company, ensure that the company is pursuing the stated business development and hiring plans as aggressively as possible. If changes have occurred that affect compliance with the visa, such as changes to salary, job location, or corporate structure, contact an immigration attorney immediately and apply to amend the visa as necessary to maintain compliance.