On January 17, 2025, U.S. Citizenship & Immigration Services (USCIS)’s H-1B modernization regulation took effect, covering several H-1B-related subjects (89 FR 103054, 12/18/24). In this blog post, we take a closer look at the regulation’s provisions relating to USCIS investigations and worksite visits to enforce H-1B compliance, at 8 CFR 214.2(h)(4)(i)(B)(2). This updates our prior blog posts in 2009, 2017, 2019, and 2024 on H-1B worksite visits.
Summary
The final rule delineates USCIS’s authority and companies’ compliance requirements for H-1B site inspections. Per the Final Rule, USCIS at any time after filing of the petition, including after petition approval, may conduct unannounced site visits, hold interviews of petitioners, beneficiaries, or third parties without the presence of counsel, and may perform investigations to verify that the information in the H-1B petition is/was true. Failure or refusal to cooperate in a site visit may result in denial or revocation of the H-1B petitions of any H-1B workers at the work site in question. Most details of the site-visit regulation are codifications of pre-existing USCIS practice from 2009 to the present.
No advance notice of site visit
The regulation allows USCIS to perform on-site inspections, without notice, as needed to verify the facts asserted in an H-1B petition. To be prepared for an unannounced site visit, employers may wish to instruct their reception staff on a protocol to follow.
No requirement to allow legal counsel
Any time USCIS officers conduct a site visit or interview, they may, but are not required to, request the individuals' permission. Should a site visit occur, employers and/or employees should contact their immigration attorney immediately; however, the regulation states that interviews may be conducted in the absence of the employer’s representatives. If the individual is represented and wishes to have their lawyer present, they may request that their lawyer be able to join by phone or to have the visit rescheduled. Though USCIS typically will not reschedule a site visit to accommodate counsel, USCIS has in the past allowed counsel to participate via phone if they can be reached at the time of the visit. If counsel cannot be reached in the moment, the employer should write a detailed description of what happened, to be shared with counsel afterwards.
Locations for site visits
The on-site inspections may occur not only at the petitioner’s (employer’s) office, but also at any “third party’s” facilities – e.g., the site of a customer/client company where the H-1B employee is contracted to work. In Supplementary Information published with the regulation, USCIS indicated that on-site inspections may also occur at the H-1B employee’s private residence if the job is performed remotely from home. Although the regulation provides that interviews may be conducted on the employer’s property or, as feasible, at a mutually agreed neutral location away from the employer’s property, employers should be aware they are under no obligation to allow USCIS access to all areas of the employer’s premises. The employer may limit USCIS’s access to the company’s “public” areas, such as the office lobby (provided any files, documents, and witnesses can be brought there when requested), or limit the interviews and document inspections to a single, designated space. If USCIS requests a tour of the employer’s facility, the employer may decline if company policy does not allow tours by visitors; however, if the “tour” is directly relevant to the H-1B case being investigated, the employer should cooperate – e.g., allowing USCIS to view the H-1B employee’s workstation. If the site visit is at the employee’s residence, USCIS officers need only to access the H-1B employee’s work area and any portion of the residence that must be accessed to reach the work area.
Is a warrant or subpoena required?
When an agent of USCIS arrives to perform a site inspection, they do not bring a warrant or subpoena. The employer’s signing statement on every H-1B petition includes a statement of consent to on-site inspections. In prior versions of Form I-129 (the H-1B petition form), the signing statement was brief, e.g.: “I recognize the authority of USCIS to conduct audits of this petition using publicly available open source information. I also recognize that any supporting evidence submitted in support of this petition may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” The signing statement on the current Form I-129 version, required as of 1/17/2025, is more detailed:
By filing this petition, I agree to the conditions of H-1B or H-1B1 employment and agree to fully cooperate with any compliance review, evaluation, verification, or inspection conducted by USCIS. I understand that USCIS access to the petitioning organization's headquarters, satellite locations, or the location where the beneficiary [the H1B employee] works or will work, including third-party worksites, is vital for the purpose of determining compliance with H-1B or H-1B1 requirements. I understand that USCIS' inability to verify facts, including due to the failure or refusal of the petitioner or third party to cooperate in an inspection or other compliance review, may result in denial or revocation of the approval of this petition or any H-1B petition for H-1B workers performing services at the location or locations that are a subject of inspection or compliance review, including any third-party worksites.
Identity and agency affiliation of government agent
In the event of a site visit, employers and/or employees should request the name, title, and contact information of the site investigator. There are multiple governmental agencies that may arrive at a worksite for immigration-related reasons, including but not limited to USCIS (specifically, the Fraud Detection & National Security directorate, or FDNS), Immigration & Customs Enforcement, the Department of Labor’s Wage and Hour Division, and the various federal agencies involved in homeland threat assessment. This blog post covers only H-1B site visits by USCIS or its FDNS directorate. If the site investigator identifies themselves as a USCIS or FDNS employee or contractor, the employer should request identification. USCIS/FDNS agents carry official identification which they will display to those being interviewed. If the employer or H-1B employee is unsure of the authenticity of the identification or whether the officer is acting in their official capacity, the USCIS/FDNS agent can provide contact information to verify their identities and official nature of the inquiry.
Substance and purpose of the H-1B site visit
An H-1B site visit is to verify facts asserted in the H-1B petition and to ensure the employer is in compliance with H-1B requirements, including the requirements and assertions of the underlying Labor Condition Application (LCA). An H-1B petition may be investigated any time after it is filed, including when the petition is still pending, and after the petition has been approved. During an H-1B site visit, the USCIS/FDNS officer will typically focus on a specific H-1B petition, regardless of the number of H-1B petitions filed by the employer. The officer will normally have a copy of the petition. The officer will usually ask to speak with the employer’s representative who signed Form I-129. However, because the site visit is unannounced, if this representative is not available, the officer might then ask to speak with another official, such as the Human Resources Manager. The officer will ask for specific information about the company, including, but not limited to, the employer’s business, locations, and number of employees. The officer may ask to review a copy of the company’s tax returns, quarterly wage reports, and/or other company documentation to demonstrate that it is a bona fide business. The officer may also request confirmation that the signature on the Form I-129 petition is genuine. The officer typically also requests detailed information about the H-1B employee’s job title, job duties, work location, and salary. The officer may also request to review a copy of the H-1B employee’s most recent paystub and last Form W-2. The officer might also ask to review the LCA Public Access File for the LCA underlying the specific H-1B petition. The employer is legally required to provide the Public Access File upon anyone’s request. The 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.
Interview of the individual H-1B worker and, if applicable, co-workers
After speaking with an employer representative and, if applicable, viewing the worksite, the USCIS/FDNS officer will then normally ask to interview the H-1B employee. During this interview, the officer may ask the employee about their job title, job duties, responsibilities, employment dates, position location, requirements for the position, their academic background and previous employment experience, their current address, and information about their dependents, if any. In some cases, after speaking with the H-1B employee, the officer may ask to speak with a colleague of the employee and/or their manager. When speaking with these individuals, the officer will again request information about the employee’s job title, job duties, and job requirements.
Presence of a witness at interviews
It is advised that, if possible, employers and employees have a witness present when being interviewed in an H-1B site visit. This ensures that, if the government erroneously asserts that derogatory information was obtained, there will be more than one witness to the error.
Cooperation with site visits and effect of derogatory information
The new regulation states, at 8 CFR 214.2(h)(4)(i)(B)(2)(ii):
If USCIS is unable to verify facts, including due to the failure or refusal of the petitioner or a third party to cooperate in an inspection or other compliance review, then such inability to verify facts, including due to failure or refusal to cooperate, may result in denial or revocation of any H-1B petition for H-1B workers performing services at the location or locations that are a subject of inspection or compliance review, including any third party worksites.
This potential penalty for non-cooperation is severe – denial or revocation of not only the H-1B petition being investigated, but also denial or revocation of any/all H-1B petitions for H-1B workers at the worksite in question. However, according to the Supplementary Information accompanying the regulation, USCIS must adhere to 8 CFR § 103.2(b)(16)(i), which states that, for any decision based on derogatory information unknown to the petitioner, the “petitioner will be advised of this and offered an opportunity to rebut the information, and to the extent that this information is necessary for the petitioner to respond to and rebut any identified deficiencies, USCIS will disclose that information in the notice of intent to deny or notice of intent to revoke.” Any derogatory information obtained during the site visit may also be used in further investigations, which, depending on their nature, may also lead to civil penalties or criminal prosecution.
Potential issue for federal litigation
Commenters on the new regulation have pointed out that the statute USCIS relies on for the regulation’s expansive investigative power, INA § 287(a)(1), 8 U.S.C. § 1357(a)(1), which provides any USCIS officer or employee with the authority (pursuant to DHS regulations) to, without warrant, “interrogate any alien or person believed to be an alien as to his right to be or remain in the United States,” conflicts with the limitations of a later statute, the Homeland Security Act of 2002, which does not authorize interrogation of persons other than noncitizens, such as U.S. employers or their third-party corporate customers. Unless/until this conflict of statutes is resolved through federal court litigation or otherwise, USCIS is expected to hold to the expansive investigative justification of the earlier statute.
Conclusion
Employers, H-1B employees, and pertinent third parties should prepare for H-1B site visits governed by the new regulation. Inasmuch as the new regulation codifies USCIS’s pre-existing practices, with which we are already familiar, employers may expect that future site visits typically will be conducted without notice, will be completed in less than an hour, and will consist of up to three stages: a meeting with a staff member of the employer, a look at the H-1B employee’s work area/premises, and a meeting with the H-1B employee. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the H-1B employment complies with the terms of the petition. The inspector may ask for documentation to compare with the information in the visa petition and may wish to address any inconsistencies discovered. After conducting the interviews and receiving any requested documentation, the USCIS/FDNS officer will complete the site visit.
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