H1B Visa Lawyer Blog
In an effort to detect, deter and combat immigration benefit fraud and strengthen efforts in ensuring benefits are not granted to those who threaten national security or public safety, the United States Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) have commenced an assessment of the H-1B nonimmigrant visa program. As part of the assessment program, FDNS officers collect information during site visits to verify information pertaining to petitions that are pending and already approved.
The FDNS consists of approximately 650 individuals, including Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. FDNS has also contracted with multiple private investigation firms to conduct site visits on behalf of FDNS.
These visits by FDNS officers are unannounced and may take place at the employer’s principal place of business and/or the H-1B non-immigrant’s work location (end client site). FDNS Officers do not need a subpoena for the site visit because the regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However, USCIS will provide an opportunity for an Employer to address any adverse or derogatory information that may result from these types of site visits. An employer may request that counsel be present; however FDNS will not reschedule the visit just for counsel, therefore, if requested, counsel can be present via telephone for the site visit.
During a site visit, the FDNS Officer will ask questions to verify information contained in a specific immigration petition. They will have a copy of the petition, ask to speak with the employer’s representative (the one who signs immigration forms), and will ask questions regarding the employer’s business, locations, number of employees, and the number of H-1B petitions previously filed. They may also request to review company’s tax returns, quarterly wage reports, among other documents to verify that the Employer is a bona fide business entity. Additionally, the Officer may ask questions regarding the H-1B non-immigrant’s title, job duties, work location and salary; and may ask to review the non-immigrant’s most recent pay stub and Form W-2. FDNS Officers may also inquire about the Employer’s Immigration Counsel.
After interviewing the employer’s representative, the FDNS Officer may request a tour of the facility, take photographs, and may even request to interview the H-1B beneficiary. The Officer will then ask the beneficiary similar questions to the ones asked of the Employer’s representative: the beneficiary’s job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background, previous employment experience, current address, and information about family members (husband/wife and/or children). Additionally, the Officer may ask a colleague of the beneficiary similar questions about the beneficiary.
Typically, these H-1B site visits last for less than an hour after the walk thru, documentation gathering and interviews are complete.
The American Immigration Lawyers Associations (AILA) has developed a few practice pointers to inform Employers, designated representatives and H-1B Beneficiaries of what to expect and how to react, if an FDNS Officer comes to visit:
1.Employers should thoroughly review each and every H-1B petition before submission to confirm the accuracy of the information, the beneficiary’s eligibility, nature of the job offer, and the terms and conditions of employment.
2.If facts contained in a previously submitted and approved petition materially change, the employer should file an amended petition with the USCIS immediately, in order to avoid accusations of fraud, or withdraw the petition, if the facts change so substantially that the Employer can no longer comply with the H-1B regulations.
3.Personnel responsible for greeting visitors should be knowledgeable of the company’s immigration program, and should seek the permission of a designated company official before admitting any unauthorized persons (FDNS Officers) to the private areas of the business.
4.If the business has strict policies against tours and photographs of particular areas, the Employer or designated representative should explain that to the FDNS Officer.
5.The Employer, designated representative, beneficiary, and any other individuals that may come in contact with an FDNS Officer should request the name, title and contact information for the site investigator. Additionally, they should not speak with these Officers without a witness present.
6. After a tour is complete, and/or interview conducted, the Employer, designated representative, beneficiary, or other worker should take the time to accurately transcribe the information that was requested and the documentation gathered.
7.The Employer, designated representative as well as the Beneficiary should have a copy of the H-1B petition submitted to the USCIS, so that each party is fully aware of their rights and responsibilities.
8.The Employer, designated representative, Beneficiary and other workers may stage a mock visit under the supervision and direction of counsel, so as to better prepare the parties for possible interrogation regarding a random petition selected by USCIS’ FDNS.
9.If a beneficiary is at an end-client site, the Employer should notify the end client about the current FDNS H-1B assessment program and the likelihood of a site visit to their facility. Additionally, the Employer should request to be contacted at the beginning of an FDNS visit, if the end-client is so selected.
10.If the Employer is unsure about something, they should NEVER guess, but inform the FDNS Officer that they will follow up with them after they can obtain accurate information.
If you have any questions relating to an FDNS site visit, please do not hesitate to contact our office.
This information has been prepared for the benefit of those who partake in the H-1B nonimmigrant visa program.
The information contained in this web posting was summarized from the article:
AILA InfoNet Doc. No. 09100123 (posted Oct. 1, 2009)