Over the last several months, employers have continued to experience unannounced site visits by U.S. Citizenship and Immigration Services’ Office of Fraud Detection and National Security (FDNS). As we have reported in previous client alerts, FDNS conducts site inspections to verify the information that employers provide in their immigration petitions. Most recently, site visits have focused on approved H-1B petitions, though inquiries on other types of cases are possible. Some employers have reported receiving multiple site visits, each pertaining to a separate petition and foreign worker.
The following updated Frequently Asked Questions address the latest developments in the site visit program, based on Fragomen’s continuing analysis of FDNS practices. If your company is contacted by an FDNS officer, you should call your designated Fragomen professional immediately to discuss options, including the possibility of having counsel present during a site visit.
1. Why is USCIS making employer site visits?
The Fraud Detection and National Security unit of USCIS has been making employer site visits for several years. Although site visits are not new, FDNS has recently added more staff and broadened its investigative efforts.
Typically, site visits are conducted as part of a Benefits Fraud Assessment (BFA). BFAs are initiatives that review specific immigration programs – such as the H-1B or L-1 program – to determine the incidence of fraud in that particular program. A BFA typically lasts for several months. During this time, USCIS will randomly select a large number of petitions or applications for benefits in the particular category being assessed. These cases are assigned to FDNS officers, who visit the premises of sponsoring employers to verify the existence of the employer, the validity of the information the employer has provided in an immigration petition, and whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States. Currently, FDNS is in the midst of an assessment of the H-1B program and most site visits pertain to H-1B petitions. However, an employer may receive a site visit concerning another type of immigration petition or application.
In addition to verifying the validity of data contained in an immigration petition, FDNS officers use information collected during site visits to help USCIS develop a fraud detection database. FDNS officers gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could indicate fraud.
2. Does USCIS give advance notice of a site visit? Not necessarily. In most cases, officers from the FDNS unit will arrive at the worksite unannounced, though occasionally an officer may call the company to inform it of an impending visit.
3. Can I request our Fragomen attorney’s presence during the site visit? You can ask to have counsel present during the site visit, especially because your attorney has submitted a Form G-28 notice of appearance, confirming that the company has legal representation in connection with each petition it files. In our experience, FDNS officers will not typically reschedule a site visit so that an attorney can be physically present, but may agree to allow counsel to be present by phone. In the alternative, you may contact your Fragomen professional with questions during the course of the site visit. If the officer is resistant, you should explain that having the company’s immigration counsel present or available by phone will help the employer respond fully and accurately to the officer’s questions and requests for information.
4. Who are the FDNS officers? Can I ask to see the officer’s identification?
Site visitors are either employees of U.S. Citizenship and Immigration Services or employees of private investigation firms that have contracted with USCIS to conduct site visits for FDNS. When an FDNS officer or contractor appears at your company premises, you should ask to see his or her identification and business card. If you have any concerns about the visitor’s credentials, you may call the telephone number on the business card to verify the visitor’s authority to conduct the inquiry. You should note the site visitor’s name, title and contact information for your company’s records of the site visit.
5. My company has a policy of admitting government officials only when they have a subpoena. Must we cooperate with the FDNS officer? Fragomen strongly urges employers to cooperate with FDNS officers making site visits. In submitting petitions for immigration benefits, employers subject themselves to reasonable inquiries from the government. The regulations governing immigration petitions expressly allow the government to take testimony and conduct broad investigations relating to the petition. Employers who file an I-129 petition for a nonimmigrant worker authorize the release of any information from its records that USCIS might need to determine eligibility for the immigration benefit sought. The instructions to the I-129 petition state that USCIS may verify the information submitted in the petition through any means that the agency deems appropriate, including on-site inspections. Thus, it is important to make efforts to cooperate with FNDS officers.
This does not mean that there are no “off limits” requests. Depending upon all of the circumstances, an employer may conclude that a government request is not sufficiently related to the immigration petition being verified and could decline to respond to a particular request. But it is important to weigh your company’s interests before deciding not to respond, because a failure to cooperate fully could jeopardize the specific immigration petition in question and compromise the company’s likelihood of success in future filings.
6. What happens during an FDNS site visit? Usually, the officer is making the site visit to verify information in a specific immigration petition, and will generally have a copy of the petition. Typically, the officer will ask to speak to an employer representative, such as a human resources manager. The officer may also ask to speak with the foreign national beneficiary of the petition in question and his or her direct supervisor or manager. He or she may also ask to view the employer’s premises and/or see the foreign national’s work area, and may want to photograph the premises. The officer may also ask for documents like payroll records or paystubs for the foreign national, or an organizational chart.
7. Should a company representative accompany the FDNS officer during the site visit? Should the representative take notes?
Yes, a company representative should accompany the officer while he or she is onsite. Note, though, that the FDNS officer may decline the representative’s request to sit in on interviews with foreign national employees.
During the site visit, the company representative should take detailed notes, including the officer’s name, title and contact information; the names and titles of individuals the officer interviews; the questions asked during interviews; any company documents provided to the officer; the areas of the worksite that the officer visits; and any photographs taken by the officer. If company documents are provided to the officer, the company representative should be sure to list the documents provided and retain copies of them. If the FDNS officer takes photographs of the premises, the representative should ask for copies of them.
8. How long does a site visit usually last? In our experience, FDNS officers typically spend anywhere from 15 to 90 minutes at the employer’s site, with visits usually taking under an hour. However, longer visits are possible.
9. My company has already received a visit from an FDNS officer. Should we expect additional visits? Multiple visits to an employer’s worksite are possible. Currently, FDNS is conducting a broad assessment of the H-1B program, with thousands of H-1B petitions randomly selected for FDNS verification. If an employer has multiple H-1B employees, it may receive more than one visit, with each visit pertaining to a specific H-1B petition. In addition, an FDNS officer could return to the premises to follow up on a previous visit.
FDNS has announced that it will continue to conduct Benefits Fraud Assessments (BFAs) of other immigration programs, including the L-1 nonimmigrant program. Future site visits may be conducted pursuant to those assessments as well.
10. If a foreign national employee is stationed at a third-party worksite, could FDNS conduct a visit at that site? FDNS officers typically conduct site visits at worksite of a foreign beneficiary of an immigration petition, whether the worksite is the employer’s own premises or the premises of a client. If your company has a foreign national employee stationed at a client site – for example, to perform services for a client pursuant to a contract with your company – an FDNS officer could seek to conduct a visit at the client site. Likewise, if a foreign national employee of another company is stationed at your company’s worksite, FDNS could seek to visit your premises to interview the employee.
Therefore, employers should communicate with vendors and/or clients to discuss the possibility of FDNS visits at either premises. Your clients should be asked to contact your company immediately if an FDNS officer appears for a site visit pertaining to one of your employees, so that a representative from your company can be present in person or by phone during the visit. Similarly, if your company receives a site visit pertaining to a vendor’s employee, you should immediately contact the vendor.
11. What kinds of questions will the FDNS officer ask?
During a visit, the FDNS officer usually works from a standard list of questions used for all employers. The officer may ask about the employer’s business, annual revenue and the number of employees at a particular location, in the United States or worldwide. The officer may also ask whether the employer actually signed and filed the immigration petition, to make sure that it was not filed fraudulently, and may also ask about the employer’s overall use of specific immigration programs.
The FDNS officer may also want to question the HR representative and the foreign national about the foreign worker’s job title and responsibilities, as well as other employees in similar positions. The officer may also ask about the foreign national’s education, previous employment, residence, and family members in the United States.
Download a detailed list of sample FDNS questions by clicking
here. Usually, officers ask a selection of the questions on this list.
12. What if I don’t know the exact answer to the FDNS officer’s question?
In some cases, the FDNS officer may ask for very specific information, like the number of all sponsored foreign workers employed by the company in the United States or the number of immigration petitions filed by the employer within a given time period. If you can’t give an exact answer to the question without reviewing company records or require the assistance of outside immigration counsel to obtain the data, let the officer know. You can request a reasonable amount of time to gather the information sought and follow up with the officer.
13. Our company has a policy against allowing unaffiliated individuals to tour or photograph our premises. If the officer asks to see or take pictures of the worksite, must I cooperate?
Fragomen recommends that employers comply with reasonable requests to examine and photograph the employer’s premises or work area. However, if your company has a strict policy against tours or photographs, you should explain that to the officer.