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H-1B

What to Expect During a FDNS Site Visit – A Practical Guide for Preparing for a USCIS Compliance Review

Over the past number of years, the Fraud Detection and National Security Directorate (FDNS) have been ramping up the number of site visits it conducts in relation to H-1B petitions. These visits, as a part of a comprehensive full compliance review performed by FDNS on behalf of USCIS, are to ensure that petitioners (the party filing the petition) and beneficiaries (the party being filed on behalf of) are in compliance with the terms and conditions of their petitions. Furthermore, the visit may also acts as the initial step in an administrative review in the event that benefit fraud is suspected on behalf of the employer. It should be noted that the visits are not meant to target non-immigrant workers, only their employers.  Generally, FDNS site visits are generally related to H-1B and L-1 petitions but may also occur in relation to EB-5 Immigrant Investor Programs visas and Special Immigrant Religious Workers Petitions.

FDNS site visits are conducted at random, after USCIS adjudicates their petitions. Compliance with the site visit is completely voluntary; however, it is the presumption of USCIS and FDNS that the submission of an H or L petition by an employer constitutes a knowing waiver of their Fourth Amendment right to privacy and, thus, a subpoena is not needed.  In addition, in the event that an employer elects not to participate in the site visit, the FDNS immigration officers will end the visit and will complete their review by using all the information that is available to them at that time and document the circumstances that surrounding why the site visit ended. Thus, it is strongly encouraged that employers cooperate with the FDNS officers.

All employers who submit an H or L petition should understand that there is a chance that they may receive a random visit from FDNS officers. Currently, the likelihood of these visits are unknown but they seem to occur more if:

  • the company’s basic business information cannot be verified through commercially available data;
  • the company are H-1B dependent petitioners; and
  • the Employers petitioning for employees who will work off-site at another company or location.

In addition, it seems that petitioners who petition for multiple beneficiaries are also more likely to be selected for a random visit.

Therefore, if it is possible that you may be randomly selected for a FDNS site visit, you should have a plan in place in the event that FDNS officers or government officials arrive at your worksite. This plan should include procedures for before the visit occurs, while the visit is occurring, and what to do after the visit occurs.

As an employer, it is your duty to ensure that your organization and employees are prepared in case a FDNS site visit occurs. The more prepared you are, the better of the compliance review will go. In order to adequately prepare, an employer should take the following precautions:

BEFORE THE SITE VISIT

  • Develop a staff protocol for site visits, put those protocols into place, and train your staff to implement them in the event that a site visit occurs.
  • Appoint a point of contact for site visits that will be the primary contact for the FDNS officers and will be responsible for speaking with them. Furthermore, this party should be the first person that is contacted once FDNS officers arrive for their compliance review. All staff should know who this person is and should be trained to contact them when and if a site visit occurs. It would also be a good idea to appoint one or two back-up points of contact in the event that the initial party is unavailable on the day that the review occurs. If any FDNS officers or other government officials arrive at the worksite, reception should be trained to immediately contact the primary point of contact.
  • Perform an internal audit to ensure that H and L employees’ job duties, work locations, and salary are consistent with the petitions filed with USCIS and that any, and all, Public Disclosure Files are up-to-date.
  • It would also be prudent to run a mock site visit to ensure that everyone knows what to do in case a real visit does occur.
  • Employers should be prepared to answer any questions regarding their company, their petition, the beneficiary, and the like as well as provide any information submitted with the petition.
  • Employees should also be prepared to answers any questions that the officers may have and be able to assist their employer in their compliance with the review. This may be accomplished by having the employee thoroughly read through their petition with specific focus given to ensuring that they know: (1) their job title as listed on the petition, (2) their salary as listed on their LCA and their petition, and (3) their job duties as listed on the petition. This is extremely important.
  • Make sure whoever signed the petition knows where to find copies of the petition.
  • Ensure that your company address is on your website.

DURING THE SITE VISIT

  • Site visits are generally unannounced but, in the event that that an FDNS officer arrives at your worksite, it is advised that you contact immigration counsel. FDNS will not reschedule the site visit for counsel to be present but they will work with you to allow counsel to be there if at all logically possible and, if they cannot make it, can make concessions to allow counsel to be involved and informed via telephone.
  • Upon arrival, the receptionist should allow the officer to wait in the reception area and contact the person designated to speak with the officers. Counsel should also be contacted at this time.
  • The receptionist should ask what the officer is there in reference to, to ensure it is for FDNS compliance related issues and not Immigration and Customs (“ICE”) related issues, and then request their identification and take down all information pertaining to the event (e.g. date, location, the officer’s name, their badge number, agency, phone number, email, records requested, whom they are there to inquire about, etc.)
  • One party should be assigned to be with the officer at all times. Furthermore, they should not be allowed to wander around the premises or to interview employees alone. A member of HR should always be present when the officer is speaking with someone.
  • The interview should take place in a common area, such as a conference room, and not in the open.
  • Typically, FDNS officials will only be there to inquire about one person at a time. So, if possible, review the file for that particular beneficiary before speaking with the officer.
  • FDNS officers are simply there to verify information and, mostly, work off of a standardized checklist of questions in order to complete a Compliance Review Report. Generally, this will only refer to questions about the filed petition, job title, job duties, work location, the work being performed, salary, payment of fees, and education qualifications. It may entail them doing outside activities such as taking photos of the premises. They also may ask for access to W-2s, payment stubs, and other extraneous documents.
  • Acquire and make ready for presentation any information or documents that were submitted with the petition as they may be requested to help them through this process.
  • If a question is asked that either the employer or the employee do not know, or are unsure of, the answer to, ask to respond at a later date so that you may verify the information. It is imperative that you do not simply take a guess or provide inaccurate information.
  • During the process, the employer should take detailed notes over everything that occurs as it may be useful in answering any questions that the officer may have following the site visit.
  • The entire visit should last about one hour and, will often, take less time than that.

AFTER THE SITE VISIT

  • Upon completion of the visit, the Officer will compile the information into a Compliance Review Report which will then be reviewed by their supervisor and USCIS officials.
  • If the report indicates that the officer believes that fraud has occurred, further site visits may be necessary. Depending on the level of severity, the case may be forwarded to ICE for further investigation.
  • Additionally, if multiple petitions were filed, more site visits may be required to come and speak with each additional beneficiary.
  • Immigration counsel should also be contacted as soon as the site visit concludes in the event that they were not able to be present for it.
  • You may receive a follow-up phone call or email from USCIS that requests additional information or documentation. Compliance with the request as soon as possible is advised.

Below is a list of questions our attorneys have received from FDNS officers during a site visit, either via email or by telephone. Employers and employees should be ready to address these types of questions in case of a FDNS site visit.

Questions to Employer:

  1. Are you aware of the petition filed for the Beneficiary?
  2. Are you familiar with the Beneficiary?
  3. Is Beneficiary an employee of EMPLOYER?
  4. What type of business is being conducted by the petitioning organization?
  5. Are there additional locations associated with the petitioning organization?
  6. How many employees work for EMPLOYER?
  7. What is the immigration status of the employees that work for EMPLOYER?
  8. Who is the owner of EMPLOYER?
  9. Does the owner of EMPLOYER own any other businesses? If so, what are the names of the other businesses?
  10. When did Beneficiary start working with your company?
  11. What is Beneficiary’s current work location? (name and address).
  12. When did the Beneficiary start working at the end-client?
  13. What is the Beneficiary’s job title?
  14. Correspondence from employer or client regarding Covid-19 work regulations.
  15. What project is Beneficiary working on and name of the project?
  16. What is Beneficiary’s annual salary and frequency of pay?
  17. Who is Beneficiary’s reporting supervisor?  On-site and off-site (name, email, and phone number)       
  18. How often is Beneficiary in touch with his/her supervisor?
  19. Who conducts Beneficiary’s performance reviews?
  20. What is Beneficiary’s work schedule?
  21. Is the Beneficiary offered benefits?
  22. How did your company recruit the Beneficiary?
  23. Explain the job selection process that EMPLOYER performed in order to select the Beneficiary for this position.
  24. What is Beneficiary’s contact information? (phone number and office email address).
  25. If Beneficiary is working for an end-client, please provide a copy of your contract between your company and the end-client company for which the employee is working for.  
  26. What type of work will the Beneficiary be assigned?
  27. What are the job duties of the Beneficiary?
  28. Provide evidence of the Beneficiary’s work product.
  29. How many H-1B, L-1A and L-1B employees does your company have at this end-client location?

Questions to Employee:

  1. How long you been employed by EMPLOYER?  (Please include employment outside of U.S., if any)
  2. What is your Title/Designation?
  3. What is your current annual salary?
  4. What company is your current end-client?  (Provide Name, Location and Contact Person and Information)
  5. If previously assigned to multiple end-clients, please provide the Company Name, Address and Inclusive Dates of Assignment of each end-client?
  6. What companies/end-client were you assigned while employed by EMPLOYER? (If assigned to multiple end-clients, provide the Name, Address and Inclusive Dates of each assignment)
  7. In your own words provide a brief statement related as to what qualifies you for your H-1B Visa.
  8. Provide list of your expertise and/or specialization.
  9. What is your work schedule?
  10. Do you ever work overtime more than 40 hours?
  11. Who paid the filing fee for the H-1B visa?
  12. Do you currently have any other jobs in the US?
  13. What year did you get your bachelor’s degree?
  14. What year did you get your Master’s degree?
  15. What city was your University located in?
  16. Are you offered benefits?
  17. In addition to your base salary, are you eligible for a bonus?
  18. Is the bonus based on your job performance, based on the the performance of the company, or both?
  19. When you’re either working from home or working at the end-client, how does the employer supervise your work?
  20. How often does your employer give you a performance appraisal?
  21. What is your current address?
  22. Are there any middle vendors with this contract with the end-client? What are the names of the vendors?
  23. Are you related to anyone at these organizations?
  24. Who is your supervisor? What is your supervisor’s email address?
  25. Are you working on a specific project for the end-client? Does the project have a name?
  26. What does the project do for the end-client – what function does it perform?
  27. What are your basic job duties?

If you have any questions regarding FDNS compliance or site visits, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Kristina M. Hernandez and Avery Krushall