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Employers with foreign national employees working under H-1B and L-1 nonimmigrant visas should be prepared to receive an unannounced visit in the coming months from the U.S. Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security and Records Verification (FDNS). Over the summer, USCIS had announced it would begin using contract inspectors to perform thousands of "random," on-site inspections of H-1B and L-1 employers to identify fraudulently filed H-1B and L-1 petitions. The fraud detection program is funded through the mandatory $500 "anti-fraud" fee paid by employers to USCIS when sponsoring an H-1B or L-1 employee. The purpose behind the visit is to verify that the petitioning employer is a legitimate, operating business and that the H-1B or L-1 employee is an actual employee working at the job location in the position indicated on the underlying visa petition.  

In the past several weeks, we have received numerous calls from employers with contract inspectors knocking at their door, and from all accounts it looks as if USCIS plans at least one unannounced visit to every employer with H-1B and L-1 workers. This article will provide you with a brief overview of what employers can expect during an on-site inspection and some best practices that every company should follow if USCIS visits your office.

What can I expect during an on-site H-1B or L-1 inspection from USCIS?

Typically, the on-site inspection will occur without advance notice to the employer. A contracting inspector or inspectors will show up announced at the employer's place of business and ask to speak with the company representative who signed the visa petition that is the subject of the inspection. If that person is unavailable, the inspector will ask to speak with another employer representative, such as a human resources director. The inspector normally will not produce a warrant or subpoena.  

The inspectors are contractors of USCIS and, in our experience, are not trained in immigration law. They appear to be working off of scripts, although the questions are not always consistent from one inspection to another. The inspectors will ask general questions about the business, such as number of employees and office locations throughout the U.S.; number of part-time versus full-time employees; and number of foreign national employees working under nonimmigrant visas or working in LPR status. The inspectors will also ask about the H-1B or L-1 worker's position with the company to verify information provided about the job matches what was contained in the visa petition that was filed with USCIS.  

The inspectors will then ask to meet and interview the H-1B or L-1 worker. They will ask questions about the employee's job, such as title and duties, salary and educational background. Once the inspectors have interviewed the employer representative and the H-1B or L-1 worker, they will ask to tour the facility and take a picture of the employee's workspace. The entire process can take anywhere from 15 to 30 minutes.          

What should I do if my company gets an on-site visit from USCIS?

First, don't panic! The unannounced visit is likely the result of a random audit, not a targeted investigation. If you're not sure of an answer or don't have the information requested readily available, just tell the inspector you can provide him or her with the information at a later time.    

Second, make sure to ask for official identification and contact information from the inspector. He or she should provide you with a business card. There are many government agencies that could make an unannounced visit to your business, such as U.S. Immigration and Customs Enforcement (ICE) and the Department of Labor (DOL), so it's important to confirm which agency is conducting the audit and for what purpose.     

Third, tell the inspector that you would like your immigration counsel to participate in the inspection by telephone, and then immediately call your immigration counsel and any in-house general counsel. In our experience, the inspectors should have no problem with this request. USCIS investigators will not have a court-issued warrant or subpoena, so you are not required to comply with any request you feel is out of bounds. For example, many employers do not allow unannounced visitors to travel through secure areas of the worksite or take photographs. Should the USCIS inspector ask to tour the building or take pictures of the H-1B or L-1 worker's workspace, feel free to politely deny the request should it be against your company policy to allow such activity. Instead, offer to let the inspector take a picture of the outside of your office building.  

Nonetheless, all attempts should be made to comply with any reasonable request for information or an interview. Failure to cooperate with the investigator could lead to potential complications with current and future visa petitions. Always have immigration counsel involved in the inspection, because we can work with you to get the inspector the information he or she needs.   

Best Practices to Consider

  • Develop an internal procedure for dealing with government visits, audits, investigations and raids. Make sure your reception staff is aware of these procedures and know whom to contact should USCIS make an unannounced visit.  
  • Designate an immigration compliance officer within the company responsible for ensuring that the company and its employees understand the internal procedure. This person should also be the person primarily responsible for speaking with USCIS investigators should a worksite visit occur. A backup compliance officer should also be designated.  
  • Review your immigration policies and procedures, especially those related to the maintenance of H-1B public access files and layoffs and terminations of foreign national workers.
  • Make sure your I-9 records are ready for review in case the USCIS inspector asks for these files. Internal I-9 audits should be conducted on a regular basis.
  • Work with immigration counsel to conduct periodic audits of your H-1B public access files. Such audits should include:
  • Ensuring the contents of your public access files are complete.
  • Ensuring the procedural requirements have been met (e.g. notice was posted properly, a copy of the Labor Condition Application was provided to the employee on a timely basis, the public access file is in the proper location, etc.).
  • Ensuring the substantive requirements have been met (e.g. payroll records confirm that the H-1B employee was paid the required wage, an H-1B worker has not been "benched," etc.).  
We urge every employer to ensure that all H-1B public access files are complete and up-to-date. Buchanan's team of experienced immigration attorneys is ready to assist you with the self-audit process. Employers can choose to audit all of their H-1B records or do a condensed audit, in which a select number of randomly chosen records are audited. This will give employers the confidence to know that they are in compliance. If there are problems with the H-1B records, Buchanan will advise on the proper steps to be taken. These steps can help to ensure future compliance and can also be used as a good-faith defense should there be problems.

If you have any questions about how to handle a USCIS site visit or would like more information on conducting an H-1B self-audit, please do not hesitate to contact one of our immigration attorneys.