The H-1B visa program allows U.S. employers to hire highly skilled foreign workers in specialty occupations, typically requiring at least a bachelor’s degree in a specific field such as engineering, computer science, or finance.

While H-1B employees can be a valuable asset to your workforce, employers must understand that compliance obligations begin the moment a petition is filed and continue for the entire duration of the worker’s employment.

Failure to comply with H-1B regulations can trigger U.S. Citizenship and Immigration Services (USCIS) investigations, Fraud Detection and National Security (FDNS) site visits, Department of Labor (DOL) audits, and potentially severe penalties.

This article outlines the key H-1B compliance basics every employer should know, and how to stay prepared for FDNS inquiries and USCIS site visits.

1. Understanding H-1B Employer Responsibilities

Employers sponsoring an H-1B worker are subject to numerous requirements under federal immigration and labor laws, primarily governed by the USCIS and the U.S. Department of Labor (DOL).

The H-1B petition (Form I-129) and the Labor Condition Application (LCA) together form the legal foundation of the employer’s obligations.

Key Employer Responsibilities Include:

• Paying the required wage: The employer must pay the H-1B worker the higher of the actual wage (paid to similarly employed workers at the company) or the prevailing wage (set by the DOL or an independent survey).
• Maintaining a bona fide employer-employee relationship: The employer must have the right to hire, pay, supervise, and terminate the H-1B worker.
• Posting LCA notices: The employer must post the LCA notice at the H-1B worker’s place of employment or share electronically for at least 10 business days.
• Filing amendments for material changes: If there is a change in work location, job duties, wage level, or other material employment terms, an H-1B amendment petition must be filed.
• Maintaining a Public Access File (PAF): Employers must retain and make available a PAF for each H-1B worker within one working day after the LCA filing.
• Avoiding “benching”: H-1B workers must be paid continuously, even during non-productive periods, unless a bona fide termination has occurred.
• Complying with I-9 and E-Verify requirements: H-1B employees must be properly verified for work authorization using Form I-9 and, if applicable, E-Verify.

2. The Role of the FDNS and Site Visit Program

The Fraud Detection and National Security (FDNS) Directorate is a division of USCIS that monitors and verifies information provided in immigration petitions. FDNS officers are authorized to conduct unannounced site visits to verify that H-1B employers and employees are complying with the terms of the approved petition.

Purpose of FDNS Site Visits

FDNS site visits are designed to:

• Verify the existence and legitimacy of the employer’s business;
• Confirm that the H-1B worker is performing the job duties described in the petition;
• Ensure that the worker is being paid the proper wage and is located at the correct worksite(s); and
• Detect potential fraud, misrepresentation, or non-compliance with H-1B regulations.

Although many site visits are random, others may be triggered by specific risk factors, such as:

• Frequent location changes without H-1B amendments;
• Third-party placement or consulting arrangements;
• Prior non-compliance findings; or
• Discrepancies found during other USCIS adjudications.

3. What Happens During an FDNS or USCIS Site Visit

FDNS officers usually arrive unannounced at the employer’s worksite. Visits typically last 30–60 minutes and involve an inspection of the physical premises, document review, and brief interviews.

Typical Steps During a Site Visit:

1. Verification of Employer Details:
   The officer will confirm the company’s name, address, business operations, and number of employees.
2. Review of the H-1B Petition and LCA:
   The officer may ask to see the H-1B petition, certified LCA, and Public Access File.
3. Employee Verification:
   The officer will ask to meet or confirm the H-1B employee’s presence, job title, salary, and duties.
4. Manager or HR Interview:
   The employer representative may be asked to confirm details such as the worker’s responsibilities, supervision structure, work hours, and reporting line.
5. Worksite Observation:
   Officers may take photographs of the work environment to confirm that the H-1B employee is working at the stated location and in a professional setting consistent with the job duties.

4. How to Prepare for an FDNS Site Visit

Because site visits are often unannounced, proactive compliance is essential. Here are key steps employers can take to stay prepared.

1. Designate a Company Representative

Identify a primary contact (often the HR manager or immigration counsel) to speak with FDNS officers.
This person should be trained on:

• The company’s H-1B compliance policies;
• The specific details of each H-1B employee’s petition; and
• How to communicate clearly and accurately with officers.

If the designated representative is not available when FDNS arrives, other employees should know to contact that person or your immigration attorney immediately.

1. Maintain Organized Records

Maintain copies of the following documents in both electronic and hard copy form:

• Certified LCA and associated documentation;
• Public Access File (PAF) for each H-1B employee;
• H-1B petition package, including Form I-129, support letter, and exhibits;
• Payroll records confirming payment of the required wage;
• I-9 forms and E-Verify confirmations; and
• Work location list and client letters (if the employee works offsite).

Having these documents easily accessible ensures you can respond to any FDNS request quickly and accurately.

1. Train Managers and Employees

Supervisors and managers should understand the terms of each H-1B petition, particularly the job title, wage, and worksite.

They should be prepared to answer basic questions from FDNS officers consistently with the information in the H-1B petition.

The H-1B employee should also be briefed on what to expect, including:

• Confirming their job title, salary, and worksite;
• Describing job duties accurately and professionally; and
• Politely referring detailed questions to the company’s designated representative or attorney.

1. Maintain Compliance Across Work Locations

If your H-1B employees work at multiple client sites or remotely, you must ensure:

• The LCA covers all current worksites (including remote addresses, if applicable); and
• An H-1B amendment is filed if a new worksite is added in a different metropolitan statistical area (MSA).

Failure to file amendments for location changes is one of the most common H-1B violations identified during FDNS inspections.

1. Review and Update the Public Access File

The Public Access File (PAF) must include:

• A copy of the certified LCA;
• Documentation of the prevailing wage source;
• Explanation of how the actual wage is determined;
• Proof of LCA posting;
• Summary of benefits offered to U.S. and H-1B workers; and
• Documentation of any corporate change affecting the H-1B petition.

PAFs must be retained for at least one year after the end of the H-1B employment and made available for public inspection within one working day of the LCA filing.

5. What to Do if FDNS Conducts a Site Visit

If an FDNS officer visits your worksite:

1. Verify Credentials:
   Ask to see the officer’s official identification and note their name, title, and contact information.
2. Notify Counsel:
   Contact your immigration attorney as soon as possible to inform them of the visit.
3. Cooperate Professionally:
   Answer questions truthfully and concisely. Avoid speculation or volunteering extra information beyond the scope of the petition.
4. Take Notes:
   Record details of the officer’s questions, document requests, and observations.
5. Follow Up:
   If the officer requests documents or clarification after the visit, provide them promptly in coordination with your attorney.

6. Common H-1B Compliance Mistakes to Avoid

Many FDNS findings arise from simple oversights. Employers should avoid these common pitfalls:

• Failing to pay the required wage during non-productive periods;
• Allowing H-1B workers to change job duties or locations without filing amendments;
• Neglecting to post LCAs at secondary or remote worksites;
• Not maintaining proper Public Access Files;
• Failing to document bona fide terminations (including withdrawal of the H-1B petition with USCIS and notification to the employee); and
• Overlooking corporate changes such as mergers, acquisitions, or name changes that require USCIS notification.

7. How Immigration Counsel Can Help

Working with experienced immigration counsel can help employers build a strong compliance framework.

A trusted attorney can:

• Conduct internal audits of your H-1B program;
• Review and update LCAs and Public Access Files;
• Train HR and management staff on best practices;
• Prepare employees for possible FDNS interviews; and
• Respond to any compliance notices or USCIS follow-ups.

Conclusion

The H-1B visa program offers employers access to top global talent, but it comes with ongoing compliance responsibilities.

By proactively maintaining accurate documentation, training staff, and partnering with experienced immigration counsel, employers can stay compliant, avoid penalties, and remain fully prepared for FDNS site visits.

Proactive compliance is not only the best defense, it’s a smart business practice that protects your company’s reputation and your employees’ lawful status in the United States.

By: Felipe Jimenez

Felipe Jimenez is an Associate Attorney at Reddy Neumann Brown PC. He works in the Non-Immigrant Visa (NIV) Department where he assists clients through all phases of the non-immigrant visa process.

Reddy Neumann Brown PC has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.