
Understanding FDNS in the H-1B Context: New Regulations and Compliance Implications
The Fraud Detection and National Security (FDNS) Directorate is tasked, at least in the view of the government, with maintaining the integrity of various U.S. immigration programs. As part of U.S. Citizenship and Immigration Services (USCIS), FDNS is responsible for detecting, investigating, and preventing immigration fraud while ensuring national security. One of the primary programs under FDNS is its oversight of the H-1B visa program, a program that enables U.S. employers to hire foreign workers in specialty occupations. In recent years, FDNS has intensified its focus on verifying compliance with H-1B petition requirements through site visits. New regulations have also changed how companies and employees need to prepare for these visits.
Background of FDNS
FDNS site visits are unannounced inspections designed to verify that the details provided in H-1B petitions align with the actual employment conditions of foreign workers. These visits typically involve reviewing documentation, inspecting worksites, and interviewing employees and managers. While site visits are not new, their frequency and scope have increased, reflecting USCIS’s commitment to reducing fraud and abuse in the H-1B program. In the past, this the Administrative Site Visit Verification Program (ASVVP) has been voluntary, and companies and employees could decline to participate without any harm. However, new regulations that go into effect soon will dramatically change that.
New Regulations and Enhanced FDNS Authority
On December 18, 2024, the Department of Homeland Security (DHS) issued a final rule titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” Effective January 17, 2025, this regulation strengthens FDNS’s authority to conduct site visits, making employer compliance mandatory and formalizing the consequences for non-cooperation.
Prior to this rule, employer participation in FDNS site visits was technically voluntary, and refusal rarely caused further issues with the petition. However, the new regulation explicitly mandates compliance, meaning that employers must fully cooperate with FDNS officers during site visits. This includes granting access to worksites, making relevant personnel available for interviews, and providing requested documentation promptly. Failure to comply with these requirements can result in significant penalties, including the denial or revocation of H-1B petitions.
Implications of Non-Compliance
Employers who fail to comply with FDNS site visits risk severe consequences that can impact their operations, reputation, and ability to participate in the H-1B program. Key implications include:
- Petition Denial or Revocation: Non-compliance may lead to the denial of pending H-1B petitions, leaving foreign workers without legal authorization to remain or work in the United States. For approved petitions, revocation can disrupt the employment of foreign workers and create operational challenges for employers.
- Reputational Damage: Non-compliance or evidence of fraudulent practices can damage an employer’s reputation in the industry, making it difficult to attract top talent and establish partnerships.
- Increased Scrutiny: Companies that fail to cooperate with FDNS site visits may be flagged for additional inspections and audits in the future, creating ongoing compliance challenges.
- Employee Implications: The revocation or denial of H-1B petitions can leave foreign workers in a precarious position, impacting their ability to continue working and residing in the United States. This can also disrupt critical projects or operations dependent on these employees.
Preparing for FDNS Site Visits
Given the increased scrutiny and mandatory compliance requirements, employers must adopt proactive measures to prepare for FDNS site visits. Below are several best practices to ensure readiness:
- Comprehensive Record-Keeping: Employers should maintain detailed and accurate records of all H-1B-related documentation, including Labor Condition Applications (LCAs), payroll records, job descriptions, and evidence of prevailing wage compliance. These records should be readily accessible in the event of a site visit.
- Internal Compliance Audits: Regular audits of H-1B compliance practices can help employers identify and address potential issues before they escalate. Audits should include a review of job duties, worksite locations, and wage payments to ensure alignment with H-1B petitions.
- Designated Point of Contact: Employers should identify a designated representative, such as an HR manager or immigration counsel, to handle FDNS site visits. This individual should be well-versed in H-1B regulations and capable of providing accurate information to FDNS officers.
- Employee Training: Employees, particularly those in HR and management, should be trained on how to respond to FDNS inquiries. This includes understanding what information can be shared and ensuring consistency with the details provided in H-1B petitions. It is important that ALL employees understand the company policies and who the point of contact is so FDNS can be directed to the proper individual.
- Worksite Preparedness: Employers should ensure that worksites meet the conditions specified in H-1B petitions. For remote workers, employers must be prepared to demonstrate compliance with remote work policies and verify worksite addresses.
- Legal Representation: Employers may consider involving immigration counsel during FDNS site visits, either in person or virtually, to ensure that their rights are protected and that they comply with all regulatory requirements.
- Proactive Communication: Establish open lines of communication between HR, legal teams, and employees to ensure everyone is aligned and prepared for potential inspections.
Addressing Challenges with Compliance
Even with thorough preparation, employers may encounter challenges during FDNS site visits. Common issues include discrepancies between petition details and actual job conditions, difficulty accessing records, and employee unavailability for interviews. To mitigate these challenges, employers should:
- Conduct regular updates to H-1B petition records to reflect any changes in job duties, wages, or worksite locations.
- Establish clear communication protocols to ensure that relevant personnel are available during site visits.
- Work closely with legal counsel to address any discrepancies identified during site visits.
- Ensure remote work arrangements are well-documented, with clear policies aligning with the original petition.
Moving Forward: The Importance of Compliance
The December 2024 regulation marks a significant shift in the H-1B compliance landscape, emphasizing the importance of employer accountability and transparency. For employers, compliance with FDNS site visits is no longer optional; it is a mandatory component of participating in the H-1B program.
While the heightened scrutiny may pose challenges, it also presents an opportunity for employers to strengthen their compliance practices and build trust with USCIS. By investing in proactive measures, such as internal audits and employee training, employers can navigate the complexities of FDNS oversight and ensure the long-term success of their H-1B programs.
For foreign workers, these regulations provide additional assurance that the terms of their employment will be upheld, fostering a fair and transparent immigration system.
As the landscape continues to evolve, employers must stay informed and agile. Partnering with experienced immigration counsel can help ensure that they meet their obligations while minimizing disruptions to their operations.
Reddy Neumann Brown PC located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based and investor-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.
By: Steven Brown
Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.