Tuesday, July 19, 2016
By: David Nachman, Esq., Michael Phulwani, Esq. and Ludka Zimovcak, Esq.
Some time back, the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. reported that the U.S. Department of Homeland Security, Citizenship and Immigration Services ("USCIS"), sought to step-up its efforts to find fraud in the H-1B program. This was done by conducting investigations and visiting H-1B petitioner worksites throughout the U.S.
These investigations came to be known as H-1B “site visits”. The site visits began as part of the USCIS' goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS' Office of Fraud Detection and National Security ("FDNS").
According to the FDNS' findings, as many as one in five H-1B applications were affected by either fraud or "technical violations" in the H-1B program. Additionally, there have been inquiries into the religious worker visa program over the past several years that threatened to derail the program as a result of an allegation that nearly 30% of the religious worker visas submitted were fraudulent applications.
Over the past several years, the FDNS has expanded its investigations from the H-1B visa program to the religious worker program. Now, FDNS site visits and/or investigations are a mandatory part of the religious worker visa process. Additionally, and while our office has experienced this on a less frequent basis, there is rumored to be an increase in site visits for L-1 visa petitions. Particularly, “new company” L-1A visa cases seem to be impacted. However, all L-1 cases seem to be under the preverbial “microscope”.
Why should employers be concerned about the site visit? Any employer who sponsors a foreign national worker for an H-1B professional and specialty occupation work visa, religious worker visa or an L-1 intracompany transfer nonimmigrant work visa, can be subject to an unannounced site visit. A site visit can also be announced but these would tend to be more common in the context of the nonimmigrant religious worker visa classification.
What this means is that an FDNS investigator (and/or a DOL or CIS or DOS investigator) can randomly show-up at a worksite and demand to see a copy of the petition, interview the person who represented the company in connection with the petition as well as the employee/beneficiary or other employees presently at the proposed or intended worksite specified in the petition. Any inconsistencies in the information that was represented in the petition submitted to the government can result in a potential headache for the employer.
FDNS has indicated that it does not need a subpoena in order to complete a site visit because USCIS regulations governing the filing of immigration petitions allows the government to take testimony and conduct broad investigations relating to the petitions. In fact, the fine print on the petition forms seems to permit these inquiries. However other sources say that employers are not required to respond to the investigator’s demands without a formal subpoena.
What is an employer to do? From a practical standpoint employers and employees should do everything that they can to always comply (as much as possible) with any investigative agency that seeks information. Failure to do so may result in the issuance of a “Notice of Intent to Deny” (NOID), which, if issued, can result in the employers need to prepare a formal response or rebuttal to the NOID. If accurate and consistent information can be provided in response to the initial site visit then the investigating officer, in his/her discretion, may choose not issue a NOID.
USCIS has indicated that employers (and their staff) may have their immigration lawyers or immigration attorneys present during a site visit or inspection, however, it is important to note that the investigator is not likely going to return on another day if the immigration law counselor for the employer is not available on the day of the visit. From a practical standpoint, immigration law counselors who handle H and L and religious worker visa cases and R and L visa cases should discuss the site visit process with their clients and they should explain to them that they can make themselves available via telephone in the event that the employer is facing a site visit.
Some common questions that have been raised by employers about the site visit process include: (1) "how are companies selected to be investigated," and (2) "if I am visited, should I be concerned," and (3) "what type of violations are the investigators looking for," and (4) "how can I prepare for a site visit from a USCIS/FDNS investigator?"
To address these issues in order, firstly, any employer who has filed an H-1B or an L-1 or an R-1 (or an EB-4 Religious Worker Visa) petition can be subjected to a site visit. For religious worker visas, site visits are mandatory. For the H-1B and L-1 visa petitions, CIS claims the employers are chosen at random.
However, when the site visit program began (back about 5 years ago), close to 40,000 employers' were slotted for site visits. We are given to understand that some of the factors that may have been taken into consideration when selecting these 40,000 employers included: (1) companies with less than 15 employees; (2) companies with less than $10 million in sales; (3) companies less than 10 years old; (4) accounting, HR, business analyst, sales and advertising positions; and (5) petitions where the beneficiary merely had a bachelor's degree, not an advanced degree.
However, the site visit process has now matured. Now it appears that any organization that has done a religious worker visa, an H-1B or an L-1 may receive a site visit from an FDNS investigator. What also appears to be the case in the programs maturity is that the investigations are being handled by in-house by FDNS officers as opposed to independent contractors for the U.S. Department of Homeland Security. When the site visit program was in its genesis, independent contractors (folks retained by USCIS who had little understanding about the immigration law process) were the ones who did the site visits and many legal practitioners at that time expressed concern about the ability of these individuals to obtain, convey, or generate accurate information.
If your company receives a site visit and all of your records are in order, you have nothing to worry about. Generally, employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) or another administrative agency (such as the U.S. Department of Justice) for further investigation depending upon the issue. This could mean there could be monetary, and if egregious offenses, possible criminal penalties for the employer.
The objective of the site visit program is clear. The CIS is seeking to detect fraud and abuses in its visa programs. According to USCIS, offenses can range from technical violations to outright fraud, with the most common violation being the non-payment of a prevailing wage to the H-1B beneficiary. More specifically, for an H-1B nonimmigrant employer, the FDNS investigators may be looking for the following types of violations: (1) job location not listed on the H-1B petition and/or LCA; (2) H-1B worker not receiving the required wage; (3) fraudulent H-1B documents or H-1B worker credentials; (4) non-existent business or office location; (5) job duties significantly different from those listed on H-1B petition/LCA; (6) misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee. Many of these same issues can be the focus in an L-1 and religious worker site visit context (although the LCA – and therefore DOL’s jurisdiction - is not relevant).
How can an employer prepare for a possible site visit? For the H-1B employer, the first step would be to ensure that the organization is maintaining proper Public Access Files (PAF) for each H-1B worker. Of course, it is also important for the H-1B employer (and employee) to ensure that the PAF documents are accurate and up-to-date. In general, we continue to advise our clients to review and audit H-1B/LCA records to make sure everything is in order and that all of the information is readily available. If the employer is not aware of its obligation to create and maintain a PAF we encourage employers to contact our office.
Another important step in the site visit process is for the employer to designate a specific individual at each H-1B worker location to meet an investigator or government official should he/she arrive. The person who greets the site visit officer from the FDNS should be prepared to give the investigator a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so that the employer does not need to search frantically for this information while the investigator is there. The same information and documentation is also important for the religious worker and the L-1 employer. However, as previously stated, the LCA does not apply in the religious worker or the L-1intracompany transfer visa context.
For more information about employer compliance issues and what steps that an employer can take to prepare itself for a site visit or even an I-9 Form investigation (by ICE), please feel free to contact the immigration and nationality lawyers at the Nachman Phulwani Zimovcak (NPZ) Law Group by e-mailing us at firstname.lastname@example.org or by calling our office at 201-670-0006 (x107). Our immigration and nationality lawyers are ready to assist you and your HR staff with regard to your business immigration compliance issues.
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