By: Joseph Barnett and Anastasia Tsareva
Despite workplace shutdowns, international travel restrictions, and “stay at home” orders, USCIS’ Office of Fraud Detection and National Security (“FDNS”) continues its directive to engage in workplace site visits of U.S. employers who sponsor foreign L-1 and H-1B workers. FDNS’s mission is to “safeguard the integrity of the nation’s legal immigration system” by leading efforts to combat fraud and to detect national security and public safety threats. U.S. employers will likely see even a greater number of site visits now that President Trump has just issued another Executive Order “to prevent Americans from being displaced by foreign workers”.
Here are five things to know about FDNS site visits during COVID-19:
- Purpose: The purpose of the site visit is to ensure that petitioners (U.S. employers) and beneficiaries (foreign employees) follow the terms and conditions of their immigration petitions. Questions are generally limited to the facts presented in the I-129 petition, including job duties, salary, qualifications, wage information, and work locations, and employees should be familiar with the submitted application and be able to articulate why they are eligible for their current visa status. For L-1A executives, managers, and function managers, it is important to show that the person has the subordinates in place who alleviate him/her of performing day-to-day duties. For L-1B beneficiaries, it is essential to demonstrate what the “specialized knowledge” is and how an employee’s work duties are connected with that knowledge.
- Timing: FDNS officers can randomly select petitioners for site visits after USCIS adjudicates their petitions, and failure to comply with FDNS officers’ requests may negatively affect the review process, including the re-opening of a previously approved case and the issuance of Notice of Intent to Revoke.
- Preparation is Key: It is critical to create and implement an action plan in the event of the FDNS site-visit. Even now, U.S. companies should ensure that there is first-contact personnel always at the office who are on notice of the possibility of the FDNS site-visit. The person should notify the current L-1 employees and the human resources manager when the FDNS officer or any other government investigator arrives at a worksite. All employees in the action plan chain of command must understand and strictly adhere to the response plan, including immediate contact of immigration counsel in order to coordinate a response with FDNS. Contact a Wolfsdorf Rosenthal attorney to create a detailed FDNS Site Visit Action Plan.
- Evidence: The FDNS Officer may ask to see the foreign national’s pay records, employee bank statements showing salary deposits, purchase orders/statement of work for services performed in US, photo ID/business card, pay records, evidence of job title and workspace, and may even photograph their workspace.
- Workplace Tour: An FDNS Officer may ask to tour the employee’s workplace. Employers should insist that at least one individual accompany the site inspector at all times. The site inspector should not be permitted to wander around the company premises on his or her own. If the company office or workplace is closed, the FDNS officer may stop into adjoining businesses and inquire whether they are familiar with your place of business. The officer may also take photographs of the exterior of the building, including signs, posted placards, etc. In the Covid-19 era, most audits start with an email and then a telephonic interview.
Being proactive about U.S. immigration compliance now will prevent unnecessary expenses and headaches during the FDNS site-visit.