The United States Citizenship and Immigration Services (USCIS) fraud unit, known as the Fraud Detection and National Security Directorate (FDNS), plans to expand the number of site visits for this fiscal year. The expansion of the site visit program comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General analyzing USCIS’ L-1 intracompany transferee program and suggesting ways to reduce fraud and standardize adjudications across the program. FDNS is responsible for those audits, which have increased dramatically over the past three or four years. Federal authorities will visit roughly 30,000 work sites this year to check whether everything listed in L-1 petitions is, in fact, accurate. The government ramped up its anti-fraud efforts in 2010, and the initiative has since gained steam. Initially, FDNS focused its efforts on the review of H-1B visas but the corporate community has been witnessing a spike in L-1A and L-1B visa investigations. The effectiveness of this scheme has led to its increased scope. It is estimated that over 80 percent of DHS fraud investigations are now derived from these site visits.
The L visa category is used to transfer multinational executives and managers from abroad to affiliate companies in the U.S. Likewise, employees with “specialized knowledge” of a company’s products or proprietary processes may qualify for an L-1B visa transfer. The L visa traditionally enjoyed a level of freedom from strict immigration reporting and compliance rules. But this has all changed and companies should be aware that USCIS is aggressively targeting managerial personnel. Immigration officers specially trained to conduct FDNS site visits will conduct all L visa company reviews. Petitions are randomly selected for review, and site visits are to be conducted at the work location indicated on the petition. The unannounced visit can catch the employer unprepared and the government sees this tool as an extremely effective way to uncover work-site fraud.
As part of the compliance review process, the FDNS site inspector will seek to interview the foreign national, as well as the individual that signed the relevant visa petition forms, and the inspector will likely want to take photos of the work area. The site inspector will check whether the parties have knowledge of the petition contents and whether the company is in compliance with the terms specified in said petition. The inspector may also ask to review certain documents, such as the beneficiary’s recent paystubs.
Preparing for the Foreseeable
According to USCIS, the site visit is a voluntary program and although there has been little guidance from USCIS, L-1 employers should be prepared for FDNS site visits and should take these visits seriously. Companies need to identify procedures in advance to prepare for an unannounced FDNS worksite visit and notify all personnel of these procedures. The receptionist is often the first to interact with the inspector and can unwittingly complicate matters by being unprepared. Therefore, a protocol should be in place that includes notifying HR of an inspector’s presence and keeping the inspector in a designated conference room limiting his access to the work area. Having a designated spokesperson will eliminate confusion and allow for an efficient review. Employers should conduct an internal review of the employment of all L-1 employees to ensure that their job duties, worksites and salaries are readily available for review. They should also retain complete copies of all I-129 L petitions and paperwork. In addition, files need to be maintained meticulously in order to avoid inspectors digging deeper for information. Employers should ensure that foreign national employees and their managers are aware of the content of the L petition and supporting documentation. Companies should also make sure that employees cooperate with inspectors, and discuss what information should or should not be provided in the event that such a visit takes place. While there is currently no requirement to file an amended L-1 petition due to minor changes in employment, employers should be prepared to provide complete and accurate information about L-1 employees to site inspectors either on site or in response to follow-up inquiries by an inspector which is usually conducted via email.
As mentioned, the purpose of a site visit is fraud detection. Typically, USCIS will want to confirm that the petitioning organization is a bona-fide legal entity, that the foreign national employee is in fact working at the location stated on the petition, and that the employee’s stated duties and compensation information is accurate. If an inspector notes inconsistencies between the petition and what they see on their visit, they may revoke and terminate an approved petition. Given this risk, we strongly advise our clients to expect questions about the specific job including the job duties for the position in the U.S. and abroad, the direct and indirect subordinates reporting to the manager, qualifications for the position, and U.S. salary. It is important to remember that site visits should not be “fishing expeditions”. Although questions should be limited to the specific foreign national and should also be confined to the legal requirements for the L-1 status and not reach other employment or benefits issues, a suspect site visit can lead to additional inquiries from other government agencies and even worse can often become a public relations nightmare if the investigation becomes public or an executive is forced to leave his U.S. position. Therefore, a plan of action for unannounced site visits is a must.