You may find out soon. After several years of collecting the $500 fraud fee from employers filing H-1B petitions to sponsor foreign national employees, the U.S. Department of Homeland Security ("DHS") has increased its investigatory activities by dispatching officers and independent contractors to the places of employment indicated on the visa petition forms. Since 2005, employers have paid the $500 fraud fee with the first petition they file on behalf of new H-1B employees. With 85,000 new H-1B visas available each year, this means DHS collects at least $42.5 million annually for just the new visa numbers. That amount very well may be dwarfed by the numerous other petitions employers file. Each time an H-1B worker changes employers, the new employer must pay the fee with the petition. DHS therefore likely collects substantially more than the $42.5 million it receives from the quota-based petitions.

The stated goal of the increased investigatory activity is to preserve the integrity of the H-1B visa program by ensuring that the terms of employment outlined in the visa petition actually exist. For example, if an employer outlined in its visa petition that the sponsored employee would be working as a graphic design artist, the inspector would inquire into the nature of the employer's business, ask to see the employee's work space and request copies of payroll records to verify that the sponsored individual actually is performing graphic design work. The inspector also likely would ask to speak with the employee to verify the nature of the work. Based upon various reports of recent site visits, the inspectors have been professional, courteous and required only a brief amount of time to gather the pertinent information and documents.

The instructions to the H-1B petition form put the employer on notice that DHS may conduct unannounced site visits before or after approving the petition. No subpoena is required. Therefore, while employers certainly may request that the inspector return at a more convenient time, or at a time when counsel may be present, the inspector is not required to honor such requests. As a practical matter, most inspectors should complete their site visits quickly, and legitimate employers should have little concern.

DHS is conducting the H-1B site visit efforts on a random basis. However, we have heard reports that the number of visits have increased exponentially in the past several months. Therefore, even large, well-known organizations should not be surprised when an inspector pays them a visit. Indeed, the number of site visits has increased to the point that if you have filed an H-1B petition within the past three years, it is likely that you have been, or will be visited shortly.