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