Wednesday, August 3, 2016
By: Michael Phulwani, Esq., David H. Nachman, Esq. and Ludka Zimovcak, Esq.
U.S. Citizenship and Immigration Services (USCIS) began its Administrative Site Visit and Verification Program (ASVVP) in 2009. Under the program, site visits are conducted by the Fraud Detection and National Security directorate (FDNS) of USCIS. FDNS conducts site visits for religious worker petitions, H-1B petitions, and since 2014, L-1 petitions.
An employer that signs Form I-129 agrees that “any supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” FDNS site visits are voluntary, but it is strongly recommended that employers cooperate should one occur. Employers should immediately contact their immigration lawyer should an FDNS investigation take place. Though most site visits are unannounced and FDNS will not reschedule a visit to accommodate counsel, counsel is permitted to be present if logistically possible and is generally permitted to participate via telephone or by e-mail.
What Happens at an FDNS site visit?
When an FDNS inspector appears at the employer premises, he or she will likely ask to speak with the Human Resources Manager or the company official who signed the H-1B petition. During an FDNS site visit, the inspector is typically responsible for (1) verifying the existence of the employer; (2) the validity of the information the employer provided in the H-1B or L-1 petition; and (3) whether the foreign national is working in compliance with the terms of the H-1B or L-1 approval. FDNS may ask to take photographs of the facility and/or Signage to verify its existence, and interview the Beneficiary, and supervisors or other personnel to confirm the details of the Beneficiary’s physical work area, hours, salary, and duties. In most situations, there is no advance notice of a site visit. Site visits typically take less than one hour and often take significantly less time.
The FDNS inspectors conducting the site visit may also ask for pay stubs or W-2s and may ask questions regarding the rate of pay, title, and job duties in order to compare that information with the information reflected in the H-1B or L-1 petition and supporting letter. If an FDNS investigator asks questions which are beyond the scope of the petition or would require internal research, it would be prudent and not unreasonable to ask for additional time to respond. If follow-up is required, it is important that the employer quickly and appropriately respond with the requested information or documentation to ensure that the Compliance Review Report can be completed by the FDNS inspector in a timely manner.
If at any point the Petitioner or Beneficiary indicates an unwillingness to continue, FDNS may end the inspection. However, the FDNS inspector will likely complete the Compliance Review Report based only on the information that was gathered before the inspection was terminated and will indicate that the interview was terminated upon request. FDNS may follow-up at a later time.
COMMON RED FLAGS FOR FDNS SITE INVESTIGATORS:
• The Beneficiary’s salary in pay statements does not match the amount stated in the petition.
• Reported income on the Beneficiary’s Form1040 does not match the Beneficiary’s salary, or the Beneficiary reports as “self-employed.”
• The address of the Beneficiary’s work location in the petition is not an actual work site.
• Virtual offices or empty offices without equipment are listed as the Beneficiary’s place of employment.
• The Beneficiary lacks a work email or work phone number.
SOME SITE VISIT POINTERS:
1. Petitioners need to be aware of the possibility of a site visit at the Beneficiary’s work location, even if the work location is at a third party worksite. It is important that H-1B/L-1 employers have policies and procedures in place in case of an FDNS inspection. Human Resource Departments, staff, and company signatories should be aware of the potential for unannounced site visits and should be prepared to follow the employer’s response plan.
2. Petitioners and Beneficiaries need to be 100% confident that everything included in the H-1B or L-1 petition pertaining to the relationship is accurate.
3. Petitioners must be aware that they need to ask for and record the credentials of the inspector. The employer should record the name, title, and contact information of the inspector to ensure that any post-visit communications are directed toward the appropriate agent.
4. Make sure the person who signs the petitions (and/or their assistant) knows where to find copies of the petitions quickly and to the extent possible, to review those petitions before meeting with the inspector.
5. Petitioners need to know (and to advise the immigration counselor) that material changes to job duties, and in the case of H-1Bs, changes to work location, require amended petitions.
6. If there are discrepancies between pay stubs and the salary listed on the I-129 petition, be ready with a complete explanation. For example, some L-1 companies pay part of the Beneficiary’s salary through the foreign employer, which is an acceptable practice.
7. Petitioners need to contact their immigration lawyer immediately if a site visit occurs.
8. If the immigration lawyer does not attend the site visit, the employer should write a detailed description of what happened immediately after the visit.
9. If the Petitioner or the Beneficiary are unsure of an answer to a question should from the FDNS Investigator, they should ask for additional time and offer to follow-up with the officer, rather than guessing.
The Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., immigration lawyers and immigration attorneys continue to assist clients, their families and HR Managers with a variety of U.S. immigration and nationality issues including the preparation of immigrant and nonimmigrant visas. If we can be of any assistance, please feel free to e-mail us at firstname.lastname@example.org or to call our offices at 201-670-0006 (x107).
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