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USCIS ADMINISTRATOR SITE VISIT AND VERIFICATION PROGRAM

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SITE VISIT HISTORY & PURPOSE

ACTIONS DURING SITE VISIT

ACTIONS AFTER THE SITE VISIT

PRESENTATIONAGENDA

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HISTORY AND PURPOSE

Created in 2004, the USCIS’s Fraud Detection and National Security Directorate’s stated mission is “to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’s efforts ensuring benefits are not granted to persons who threaten national security or public safety.”

FRAUD DETECTION MISSION

PROGRAM IMPLEMENTATIONFDNS implemented H-1B Assessment Program in 2009.

PROGRAM INTEGRITYDesigned to ensure the integrity of several visa programs and/or compliance with current immigration law.

ANNUAL VISITSFDNS officers make annual visits that last about an hour.

VOLUNTARY PARTICIPATION Participation is voluntary (if employer chooses not to participate, the officer will complete the report using available data).

VISA PROGRAMS H-1Bs, L-1s, and R-1s programs are subject to site visits.

SITE VISIT CAUSES Visits are chosen randomly (some are triggered by information in the petition or by complaints).

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FDNS INSPECTOR TASK Who Are They?

• 650 FDNS officers – but often contractors. • Employers should ask to see their badge, business card, or credentials and should record this information.

1. FDNS officer verifies the information in the H-1B, L-1, or R-1 petition:• Verifies that petition exists.• Confirms beneficiary is performing the duties listed on the petition (security check).• Reviews public records and other information on the petitioning entity• Interviews other personnel to confirm what the beneficiary is doing, hours worked, salary, qualification, and

that the employer knowingly filed the petition. • May take photographs of facility and inspect work stations.• May review H-1B public access file (though this is usually done by DOL Wage and Hour Division.)

2. Compliance Review Report• Reviewed by FDNS officer’s supervisor.• Reviewed by California Service Center (CSC) or Vermont Service Center (VSC) to confirm that beneficiary

meets eligibility requirements.

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WHAT MAY BE REQUIRED DURING THE SITE VISIT

Employers should be prepared to submit any information submitted with original petition.

FDNS officers typically verify if the beneficiary is there

and/or they send a letter or email requesting

documentation and/or information verifying the H-

1B or L-1 employment.

• How is the beneficiary supervised? • Is such supervision off-site or on-

site?• If the supervision is off-site, how is

it maintained?• Who controls the beneficiary’s

work on a day-to-day basis?• What tools or instrumentalities

does the beneficiary need to perform the job duties?

• Who evaluates the beneficiary’s work-product?

Information submitted to FDNS officer for the

Compliance Review Report becomes part of the employer’s record.

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WHAT TO DO BEFORE AND DURING A SITE VISIT

Request name, title, badge number, business card, phone number and email of FDNS officer.Employers should: • Inform staff of potential or upcoming FDNS site visit,

• Designate one person in the office to act as liaison with the FDNS officer and have a back-up in case the liaison is absent on the day of the site visit,

• Review job duties, work location, etc., in the support letter to verify accuracy, • Have a witness present when speaking with the FDNS officer,• Request to be present during FDNS officer’s interviews with employees and, if this is refused, duly note the

refusal, • Contact their attorney beforehand to have them present or on the phone during the visit (FDNS will generally not

reschedule a visit to accommodate attorney’s schedule),• Note all requested information and documentation as well as all information provided by the FDNS officer.

• If FDNS officer requests information that is not readily available, employers should write down precisely the items requested, or ask the officer to provide them with a written list.

• Everyone present during the site visit should prepare a memorandum of their observations and submit it to the employer.

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HOW TO PREPARE FOR POSSIBLE FUTURE SITE VISITS

© 2016, Fakhoury Global Immigration Professional Services Inc.

Although FDNS site visits are usually done post-approval, some are not. Employers should therefore:

• Know the status of the pertinent H-1B and L-1 petition and • Conduct H-1B public access file audits to ensure compliance.• Retain copies of all I-129 petition filings and all supporting

documentation.

If the beneficiary’s information has changed

from the initially filed petition, employers should provide the FDNS officer

evidence of a filed amended petition.

Employers should consider conducting

mock site visits to train personnel and to verify

that all pertinent documentation is

available.

PREPERATION TIPS

PETITION EVIDENCE

MOCK SITE VISITS

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COMMON RED FLAGS DURING SITE VISITS

© 2016, Fakhoury Global Immigration Professional Services Inc.

• Beneficiary’s salary in pay statements and the amount stated in the petition.

• Beneficiary’s salary on Form 1040 and the amount stated in the petition.

• Beneficiary’s stated work site in the petition and the actual work location.

The beneficiary reports as “self-employed” on

the Form 1040.

INCONGRUITIES

SELF-EMPLOYED

The beneficiary lacks a work e-mail or a work

phone number.

WORK CONTACT INFO

Appearance of listed work sites are empty

or vacated

VACATED OFFICES

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AFTER THE FDNS SITE VISIT

If everything goes well, employer will not hear from USCIS again on the case. No writing is provided verifying beneficiary’s personal

review.

a. That further verification is warranted,

b. To issue a Notice of Intent to Deny (NOID),

c. Or revoke the approved petition.

If the FDNS finds evidence of fraud, it may refer the case to USCIS Immigration and Customs Enforcement (ICE) to determine

whether to pursue a criminal investigation.

Employers may need to submit a Freedom of Information Act (FOIA)

request.

FDNS may also refer the case to appropriate state agencies.

FDNS may refer case to the Department of Labor’s (DOL) Wage

and Hour Division and DOL may conduct their own site visit.

If it does not go well, USCIS may decide:

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DOL WAGE & HOUR DIVISION SITE VISITS- HOW DO THEY DIFFER FROM USCIS SITE VISITS

1. DOL Wage and Hour Division site visits ensure employer compliance with respect to a Labor Condition Application (LCA) – cf. 20 CFR 655.

2. Reviews H-1B petitions, H-1B public access files, W-2s and payroll records.3. Usually complaint driven.4. Inspectors interview beneficiary and examine job duties to ensure:

a. Proper occupational classificationb. Proper wage level, andc. That beneficiary is being paid “required wage” as listed on LCA.

5. Prior to visit, employers should ensure that:a. Information is presented correctly on LCA, and b. LCA posting notice was done properly.

6. Penalties:a. Blockages?b. Civil money penalties (increased as of October 6, 2016).c. Debarment. d. Criminal prosecution.

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MONETARY PENALTIES FOR LCA VIOLATIONSTYPE OF VIOLATION Statutory

CitationCFR

CitationMaximum Civil

Monetary Penalty after 8/1/2016

(1) A violation pertaining to strike/lockout or displacement of US workers;(2) A substantial violation pertaining to notification, labor condition application specificity, or recruitment of US workers;(3) A misrepresentation of material fact on the labor condition application;(4) An early-termination penalty paid by the employee;(5) Payment by the employee of the additional filing fee;(6) Violation of the requirements in 20 CFR 655 subparts H and I or the provisions regarding public access where the violation impedes the ability of the Administrator to determine whether a violation of sections 212(n) or (t) of the INA has occurred or the ability of members of the public to have information needed to file a complaint or information regarding alleged violations of sections 212(n) or (t) of the INA.

8 USC 1182(n)(2)(c)(i)

20 CFR 655.810(b)(1) $1,782

(1) A willful failure pertaining to wages/working conditions, strike/lockout, notification, labor condition application specificity, displacement (including placement of an H-1B nonimmigrant at a worksite where the other/secondary employer displaces a US worker), or recruitment;(2) A willful misrepresentation of a material fact on the labor condition application; or(3) Discrimination against an employee.

8 USC 1182(n)(2)(c)(ii)

20 CFR 655.810(b)(2) $7,251

(1) A willful violation resulting in displacement of a US worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition in conjunction with:(i) A willful violation of the provisions pertaining to wages/working condition, strike/lockout, notification, labor condition application specificity, displacement, or recruitment; or(ii) A willful misrepresentation of a material fact on the labor condition application.

8 USC 1182(n)(2)(c)(iii)

20 CFR 655.810(b)(3) $50,758

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