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Prepare for More Site Visits to Demonstrate Immigration Compliance

15 Aug

In recent years the U.S. Department of Homeland Security and U.S. Department of Labor have significantly increased the frequency and number of site visits.  These site visits are conducted to review foreign national employees specifically to ensure that the employer is complying with all immigration regulations and specifically that they are authorized to work in their current positions.   The government may conduct site visits in person, or via telephone and email correspondence.  Physical, in-person site visits may be conducted with or without advance notification by telephone to arrange a time.

U.S. Citizenship and Immigration Service, a component of the U.S. Department of Homeland Security, started the Administrative Site Visit and Verification Program (ASVVP) in July 2009 as an additional way to verify information in certain visa petitions. Under this program, Fraud Detection and National Security (FDNS) officers make unannounced visits to collect information as part of a compliance review. FDNS conducts compliance-review site visits on:

  • Religious worker petitions
  • H-1B petitions
  • L-1 petitions

Earlier this year, the Trump administration promised greater scrutiny of H-1B visas — including “site visits” to determine whether “H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” With it, officials at DHS also said they would require programmers applying for H-1B visas to prove they’re performing specialized, complex jobs. Experts saw both moves as attempts to crack down on Indian outsourcing companies, like Infosys and Tata Consultancy Services.

From the inception of the program in 2009, USCIS has conducted random administrative site visits.  Of the 48,109 H-1B site visits performed between October 2011 and September 2015, a Senate Appropriations Committee report found that  86% were determined to be compliant. The remaining 14% were deemed to be non-compliant.

Beginning April 2017, however, USCIS announced a departure from the policy of performing random administrative site visits and will now target H-1B petitioners fitting certain criteria. The criteria include:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data; (such as Dun and Bradstreet)
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Site visits may be originated as a compliance review (CR) under the Administrative Site Visit and Verification Program (ASVVP) or as a referral from adjudications to address potential grounds of ineligibility. Additionally, in April 2017, USCIS established a public email address where information on suspected H-1B fraud or abuse may be reported. USCIS will review these allegations for indications of fraud or abuse and has provided several examples of indicators they may consider for H-1B fraud or abuse:

  • The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
  • There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
  • The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
  • The H-1B worker has less experience than U.S. workers in similar positions in the same company.
  • The H-1B worker is not working in the intended location as certified on the LCA.

Generally, the persons conducting the site visits will ask to speak to the person who signed the petition and/or to human resources personnel listed as the contact in immigration filings.  Should you be contacted by a government official to comply with a site visit, we strongly recommend that you contact your immigration counsel before disclosing any information to the government official. Additionally, if an individual introduces themselves as a USCIS officer, front desk personnel should take the following steps:

  1. Request to see a form of ID. If front desk personnel have any concerns about the visitor’s credentials, they may call the telephone number on the business card to verify the visitor’s authority to conduct the inquiry. They should note the site visitor’s name, title and contact information for the company’s records of the site visit.
  2. Ask the officer who and what the visit pertains to, and make a record of the responses.
  3. Immediately contact the HR on site, inform them that there is an on-site visit, and identify the employee or matter referenced by the officer.

Companies should create an action plan and disseminate to HR so they are aware of appropriate actions to take in the event of a site visit. Your immigration counsel may assist you with developing such a protocol.

During the investigation, the government officer has the discretion to request and review government filings, and may request copies of payroll records and other documentation that would demonstrate that the foreign national employee is being paid in accordance with the terms and conditions stated in the immigration filings.  As an additional check on Employer compliance, the government officer may also ask to speak with the foreign national employee to question them about the their employment conditions to ensure they are consistent with the information provided in the immigration filings.

If the results of the administrative investigation indicate fraud or abuse, USCIS may refer cases to their enforcement counterparts at U.S. Immigration and Customs Enforcement (ICE) for further investigation. Significant fines and even criminal penalties may be assessed if the employer is found to be non-compliant. As the H-1B program continues to come under scrutiny, employers should prepare for more site visits in order to fully demonstrate compliance and avoid penalties.