USCIS' FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to H-1B Employers and Their Clients
The U.S. Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers should know about FDNS, FDNS' current H-1B assessment program and how to respond if an FDNS Officer visits the employer's (or its client's) office as part of this assessment program.
Background: USCIS created the FDNS in 2004 with a mission to detect, deter and combat immigration benefit fraud and to strengthen USCIS' efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS' primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS' budget is derived from the Fraud Fee which is paid by employers with each initial H-1B or L petition.
FDNS has previously conducted assessments in the L-1, EB-13 Multi-National Manager and Executive and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved. FDNS also used the information to develop databases to identify factors and trends that could indicate fraud. As previously indicated, FDNS has now commenced an assessment of the H-1B program.
Mechanics of a FDNS Site Visit: Unlike most of the site visits with the L-1, EB-13 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer's principal place of business and/or at the H-1B nonimmigrant's work location as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.
FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. The instructions for the current version of the Form I-129 contain a section outlining the USCIS' Compliance Review and Monitoring Methods. In these instructions, the USCIS states that its verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission or telephone; unannounced physical site inspections of residences and places of employment; and interviews. The instructions also indicate that the USCIS will provide an opportunity to address any adverse or derogatory information that may result from a compliance review, verification or site visit after a formal decision is made on the case or after the agency has initiated an adverse action which may result in revocation or termination of an approval. If such information is not provided by USCIS when it issues the adverse action, FDNS has indicated that the employer may request a copy through the Freedom of Information Act (FOIA).
During the H-1B site visit, the FDNS officer will normally verify information continued in a specific immigration petition, regardless of the number of H-1B petitions filed by the employer. The FDNS officer will normally have a copy of the petition. The FDNS officer will usually request to speak with the employer's representative who signed the Form I-129. However, because the site visit is unannounced, if this representative is not available, the FDNS officer will then ask to speak with another employer representative, such as a Human Resources Manager. When speaking with the employer's representative, the FDNS officer will ask the employer's representative for specific information about the company, including but not limited to, the employer's business, locations and number of employees. The FDNS officer may request to review a copy of the company's tax returns, quarterly wage reports and/or other company documentation to evidence that it is a bona fide business. The FDNS officer may also request confirmation that the signature on the Form I-129 petition is genuine. The FDNS officer usually will request detailed information about the H-1B nonimmigrant's title, job duties, work location and salary. The FDNS officer may also request to review a copy of the H-1B nonimmigrant's most recent paystub and last Form W-2. So far, FDNS officers have not been requesting to review the Labor Condition Application (LCA) Public Access file. The FDNS officer may also request information about the number of H-1B petitions that the employer has previously filed and information about the employer's immigration counsel.
After speaking with the employer's representative, the FDNS officer may then request a tour of the employer's facility. During the tour, the FDNS officer may take photographs of the facility. The FDNS officer will then normally request to interview the H-1B beneficiary. During this interview, the FDNS officer may ask the beneficiary about his/her job title, job duties, responsibilities, employment dates, position location, requirements for the position, his/her academic background and previous employment experience, his/her current address and information about his/her dependents, if any.
After speaking with the H-1B beneficiary, the FDNS officer may then request to speak with a colleague of the beneficiary and/or the beneficiary's manager. When speaking with these individuals, the FDNS officer will again request information about the beneficiary's position title, the position duties, and the requirements for the position.
After conducting the interviews and receiving any requested documentation, the FDNS officer will complete the site visit. H-1B site visits usually last for less than an hour.
Guidance for employers about FDNS site visits:
1.Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H-1B petition to FDNS for a site visit prior to the completion of an adjudication. This may be especially true with H-1B extensions with the same H-1B employer.
2.The employer should develop a company policy about the procedures to be followed by company employees during a FDNS site visit. For employers with branch offices, the policy should require the office to contact a designated representative at headquarters prior to speaking with the FDNS officer. This designated representative should then contact the company's immigration counsel. The designated representative and immigration counsel should then be present in person or by telephone during the site visit to provide requested information to the FDNS officer.
3.Employers should request the name, title and contact information for the site investigator. There are multiple governmental agencies that may audit in the H-1B program, including ICE, the USCIS Department of Labor's Wage and Hour Division and/or the USCIS' National Threat Assessment Unit. Therefore, it is critical that the employer determine which agency it is providing information to. It is also critical to obtain this information in case the employer and/or counsel has to follow up with additional information or clarifications. If the FDNS officer is a contractor, the business card provided by the contractor will not indicate his/her name or title and will only include a toll free number for FDNS.
4.Employers should retain in its records a complete copy of Form I-129 and supporting documents filed with the USCIS. Immigration counsel should provide the employer with a complete copy of the petitions and documents filed with the USCIS. When the FDNS officer arrives for the site visit, the employer's representative should retrieve this documentation to facilitate the investigation.
5.Employers should also be forwarding a copy of the Form I-129 with supporting documents to the beneficiary. The employer may also want to meet with the beneficiary to discuss the purpose and procedure for a FDNS site visit and review the contents of the filing. If the employer is unable to meet with the beneficiary, the employer may want to forward information about FDNS site visits and the company's policy for such visits.
6.If the H-1B beneficiary has been placed at a client site not controlled by the employer, the employer should notify the end user about the current FDNS H-1B assessment program. The employer should notify the end user company that the FDNS officer may appear at its location and request to speak, at a minimum, to the beneficiary and the beneficiary's manager. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the employer of the beneficiary and review the terms of the assignment. The employer should request that the end user company contact the employer at the beginning of a FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user's location.
7.If the employer and/or end user company has secure areas which are not accessible to the public and the FDNS officer requests access to these secure areas, the employer should explain to the FDNS officer about the secure areas and possibly suggest other less sensitive areas in order to conduct interviews with the beneficiary. Although employers should comply with reasonable requests from the FDNS officers regarding the examination of the employer's premises or work areas, the employer should explain if it (or its client when the site visit is occurring at a end user client location) has strict policies against tours or photographs in such areas.
8.If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not "guess" about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.
9.A representative of the employer (and/or immigration counsel) should accompany the FDNS officer during his/her review of the facilities and request to be present during the interviews of any of the company's employees. Because the FDNS has previously indicated that the site visits are normally for informational purposes and are usually not part of a specific investigation, the FDNS officer should allow the employer's representative to be present during the entire site visit. The representative should take notes of the information requested, the sites visited, the pictures taken and/or any other relevant information from the site visit. Additionally, a record should be kept of any documentation provided to the FDNS officer during the site visit.
10.Employers should remember that any derogatory information obtained during the site visit could be used to deny a petition if the site visit occurs re-adjudication, could result in revocation of a previously approved petition in the post-adjudication process, and/or could be referred to ICE for further investigation which could lead to civil penalties or criminal prosecution.
The USCIS Vermont Service Center has indicated to AILA that it has transferred approximately 20,000 cases to the FDNS as part of the H-1B assessment program. It is assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review. This is an addition to the cases that are referred to the FDNS based on a standard profile worksheet which is completed by the USCIS adjudicators as part of the regular H-1B adjudication process. Therefore, it appears that FDNS officers will be appearing at the officers of numerous H-1B employers (and their clients if the beneficiary is assigned to one of the employer's clients) within the next few months to gather information about their compliance with the H-1B program.