H-1B compliance reminder: USCIS focusing more on targeted versus administrative site visits

25 Mar 19

UNITED STATES

U.S. Citizenship and Immigration Services has been expanding and increasing compliance site visits of H-1B employers. The agency’s Fraud Detection and National Security (FDNS) unit is adding staff and stepping up its targeted H-1B site visits in particular, as well as piloting targeted site visits of L-1B employers.

Employers should anticipate more targeted visits and prepare their H and L workers, as well as frontline staff, on what to expect if they are visited by USCIS officers.

Key points:

  • Unlike random audits under the Administrative Site Visit and Verification Program (ASVVP), targeted site visits are initiated through tips from USCIS adjudicators who detect potential fraud in petitions, State Department consular offices, or the Validation Instrument for Business Enterprises system.
  • Traditionally, FDNS has conducted site visits on H-1B and L-1 employers only after adjudication of their petitions. However, targeted site visits may be conducted at any time and investigators are now increasingly conducting checks of employers who have pending petitions before USCIS.

What to expect during a targeted site visit:

  • The purpose of the visit is to investigate potential fraud or abuse of the H-1B program.
  • USCIS investigators typically show up unannounced at the work location listed on the H-1B petition.
  • They will ask to verify that information in the petition is accurate, such as the existence of the employer who filed the petition and the terms of the H-1B employee’s employment.
  • Officers may ask to speak with H-1B employees and interview them about their employment. Questions will generally involve the employees’ job duties, hours, work location and salary. In targeted site visits, USCIS officers may seek more detailed answers to certain questions depending on how and from which agency the case was referred to them.
  • In cases where the H-1B employee is working offsite, USCIS agents will generally be seeking information and documentation to substantiate the employment relationship between the petitioning employer and the employee. These may include how oversight is conducted by the petitioning employer, reasons for the offsite work and the scope of the employee’s offsite work.

Background: The FDNS unit first introduced administrative site visits of H and L employers in 2009. In 2017, the USCIS Office of Inspector General released a report that was critical of the site visit program’s effectiveness. In response, USCIS adopted several recommendations, including the introduction of targeted site visits.

While the agency is continuing random ASVVP visits, it has taken steps to shift its focus to conduct more targeted visits. FDNS entered into information-sharing agreements with the Justice Department  and the Labor Department  to increase visibility with representations being made between the agencies on various application types. Following President Trump’s “Buy American and Hire American” executive order in April 2017, USCIS issued a policy guidance entitled “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Fraud and Abuse.” The more targeted approach focuses H-1B site visits on (1) cases where USCIS is unable to verify the employer’s information through commercially available data, (2) H-1B dependent employers, and (3) companies that petition for H-1B workers who work off-site at another employer’s location.

BAL Analysis: H-1B and L-1 employers are encouraged to conduct internal reviews of their files to make sure they are in compliance and are prepared for a site visit by USCIS. Additionally, employers should be proactive in designating a contact in the event of a site visit by training HR staff and mobility teams, as well as H-1B and L-1 workers, about the possibility of a USCIS inspection, how to respond, and which documents are and are not covered by these types of audits. BAL can assist in these processes and provide guidance for employers on how to deal with the various type of USCIS site visits.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.