News Release from Jewell & Associates, PC - October 1, 2009
The following information is excerpted and adapted from an American Immigration Lawyers Association (AILA) posting dated October 1, 2009 (AILA InfoNet Doc. No. 09100123).
Background: The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS), a unit created in 2004 to combat immigration benefit fraud, recently commenced an assessment of the H-1B program. FDNS previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 visa programs. Now, it is turning its attention to H-1Bs. The following is information that employers should know about FDNS and FDNS’ current H-1B assessment program.
Expected spike in H-1B site visits in late 2009 / early 2010: H-1B petitions are currently handled at the USCIS Vermont Service Center and the USCIS California Service Center. The Vermont Service Center recently advised the American Immigration Lawyers Association that it had 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. Therefore, it appears that FDNS officers will be appearing at the offices 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.
Identity and agency affiliation of government agent: 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 FDNS, ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. If the investigator identifies himself/herself as a USCIS FDNS contractor, the employer should request a business card with a toll free number to obtain confirmation of hi/her credentials prior to providing any information.
Presence of attorney: 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.
Subpoena needed, or not? 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 unannounced physical site inspections. Whether government agents or contractors require a warrant or subpoena in order to enter the private areas of a business to conduct H-1B investigations has not yet been tested. USCIS appears to take the position that submission of the petition by the employer constitutes a knowing waiver of Fourth Amendment rights. Whether or not the agency’s position is upheld, if agents are admitted to the premises by representatives of the employer, such action is sufficient to constitute a waiver of Fourth Amendment rights. In general, personnel responsible for greeting visitors should be advised that it is company policy not to admit any unauthorized persons to the private areas of the business, including government agents or contractors, without the approval of a designated company official. In the case of agents or contractors investigating a visa sponsorship petition, the designated official should be knowledgeable of the petitioner’s immigration program and the conditions under which the beneficiaries are employed.
Presence of a witness at interviews: It is also advisable for employer representatives and employees not to speak with government agents or contractors without a witness present. This ensures that, if the government erroneously asserts that derogatory information was obtained, there will be more than one witness to the error. Any derogatory information obtained during the site visit may be used to deny, revoke, or further investigate a petition, which may also lead to civil penalties or criminal prosecution.
Subject matter covered in site visits: 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 employee’s job 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 review of 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.
Site tours and photographs: 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. T
Interview with individual H-1B employee: After speaking with an employer representative and viewing the site, the FDNS officer will then normally ask 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. In some cases, after speaking with the H-1B beneficiary, the FDNS officer may ask 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.
Conclusion of the site visit: After conducting the interviews and receiving any requested documentation, the FDNS officer will complete the site visit. H-1B site visits usually last less than an hour.
© Jewell & Associates, PC 2009