Unannounced USCIS site visits to workplaces where H-1B and L-1 workers are employed

News Release from Jewell Stewart & Pratt PC The following post excerpts and adapts an American Immigration Lawyers Association (AILA) posting dated July 26, 2016 (AILA InfoNet Doc. No. 16072604).

In a prior post we drew attention to site visits by the Fraud Detection and National Security directorate (FDNS) of the U.S. Citizenship and Immigration Services (USCIS). This program still operates: employers agree, by signing Form I-129 “Petition for Nonimmigrant Worker,” that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.”

These site visits are conducted without notice and are typically complete in less than an hour. They consist of one or more of three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the visa petition. The inspector may ask for documentation to compare with the information in the visa petition, and may wish to address any inconsistencies discovered.

The American Immigration Lawyers’ Association has compiled a list of helpful practice pointers to prepare for a site visit, some of which we summarize here:

  1. Employers should be aware of the possibility of site visits, and should have policies and procedures in place to react to them effectively.
  2. Employers and H-1B employees should be certain that the information contained in their visa petition is accurate.
  3. Employers should record the USCIS site inspector’s name, title, and contact information to ensure that post-visit communications are directed correctly.
  4. The employer’s staff members who are designated to handle a site visit should know where to find copies of visa petitions quickly.
  5. Employers should bear in mind at all times that material changes to job duties (and in the case of H-1Bs, changes to work location) require amended petitions, and that failure to file an amended petition before such a change occurs can have consequences for the employee’s legal status.
  6. An employer should be ready to explain any apparent discrepancies between the visa petitions and other documents the USCIS inspector may ask to see. (Example: L-1 companies may legally pay part of the beneficiary’s salary through the foreign employer; so a U.S. pay statement may not necessarily match the salary listed in the petition.)
  7. If during the site visit, the employer or H-1B employee is unsure of an answer to a question, they should ask for additional time and offer to follow-up later with the officer, rather than guessing.

In the event of a site visit by USCIS, employers should contact their immigration attorney immediately. Though most visits are unannounced and FDNS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit, and might be permitted to participate via telephone. If counsel cannot attend the site visit, the employer should write a detailed description of what happened, to be shared with counsel afterwards.

© Jewell Stewart & Pratt PC 2016