Costs and Liabilities Associated with Being Noncompliant, or Being Perceived as a Noncompliant Employer, Can Be Expensive and Frustrating
- The U.S. Citizenship and Immigration Services (USCIS) Fraud Detection and National Security Division recently announced that it is expanding worksite inspections to include employers of L-1 visa holders.
- In general, worksite inspections are not an indication that there is a problem. Instead, they are often random and usually employee-specific rather than designed to inspect all foreign workers in general.
Recently, the U.S. Citizenship and Immigration Services (USCIS) Fraud Detection and National Security Division announced that it is expanding worksite inspections to include employers of L-1 visa holders. Worksite inspections are, at least in most instances, random and unannounced and serve the purpose to detect fraud. The USCIS inspector will look to corroborate that the employer, foreign worker and work conditions (particularly salary, work location, and terms and conditions of employment) comply with the underlying visa petition approved by the USCIS.
Why Are L-1 Workers Subjected to Worksite Inspections?
If you have not yet had an unexpected site visit from the USCIS, you are likely to have such a visit if you employ foreign workers in H-1B and/or L-1 visa status. For years, the USCIS has been conducting worksite inspections of workers holding H-1B visa status.
The implementation of the worksite inspection program to L-1 visa workers is not necessarily surprising. For years, Congress has attacked the L-1 visa program in many respects. Congress has repeatedly taken the position that the L-1 visa program is easily open to fraud because it has no cap on the number of L-1 visas that can be issued in any one fiscal year and it has no prevailing wage rate requirement as does the H-1B visa program. As a result, Congress has taken the position that the L-1 visa program more easily displaces U.S. workers and undercuts U.S. wages. The expansion of the worksite inspection program to L-1 workers is part of the USCIS' response to concerns amplified by Congress.
There have been no significant findings of fraud within the L-1 program associated with the concerns expressed by Congress and the many related studies that have been conducted. The L-1 program was established so that skills and knowledge within multinational companies could easily be transferred to U.S. affiliates of such companies in an effort to increase U.S. competitiveness. For employers who employ foreign workers under L-1 visa status, it is imperative to be aware of the increased scrutiny faced by these petitions – especially L-1B specialized knowledge intracompany transferee visa petitions. Worksite inspections for L-1 workers is just one more step in the direction of increasing the scrutiny surrounding L-1 visas.
What Can You Do to Be Prepared?
Taking a proactive approach is the first step. Coordinate with your legal counsel to ensure that you are prepared for any potential worksite inspection. The costs and liabilities associated with being noncompliant – or being perceived as an employer who is noncompliant – can be expensive and frustrating. Your best bet is to prepare ahead of time and have a compliance program in place for all of your foreign workers. Specifically regarding the increased L-1 worksite inspections, you can be proactive by taking the following steps:
- Speak to your personnel (e.g., those answering the phones and greeting visitors, L-1 employees and their supervisors and managers, the office manager, etc.) so they are aware of the possibility of a worksite inspection.
- Have a plan in place so that if a USCIS inspector arrives at your place of employment, your personnel know what to do and to whom to direct the inspector.
- If a USCIS inspector arrives at your business, ask for his or her identification to verify the inspector's credentials and either make a copy of the identification or write down his or her name and credentials.
- Advise any personnel who might speak with the inspector to not guess at responses. If an answer is not known, your personnel should advise the inspector that he or she does not know the answer, but will provide the information requested as soon as possible or advise who will know the answer and confirm that a response will be provided to the inspector as soon as possible.
- If personnel are interviewed, ask that the designated company contact be present during any such interview.
- Have your foreign worker immigration files easily accessible in case you are asked to provide them, and ensure that all these files are up to date and contain accurate information (e.g., Forms W-2, pay stubs, a copy of the underlying visa petition, etc.).
- Advise your legal counsel of any changes to the foreign worker's employment (such as title, job duties and responsibilities, job location and salary), so any required or recommended amendments can be filed with the USCIS.
- Most importantly, advise your legal counsel when and if a worksite inspection has occurred and provide all facts relating to the inspection, including what was asked, what responses were given, who was the target of the inspection, what did the USCIS inspector say, etc.).
While companies chosen for site visits have the discretion to participate on a voluntary basis (they are not mandatory), it is usually in the best interest of the employer to comply. An employer who is in full compliance has nothing to worry about during a site visit.
What Should You Expect If You Receive a Worksite Inspection?
In general, worksite inspections are not an indication that there is a problem. Instead, they are usually random and employee-specific rather than designed to inspect all foreign workers in general. Such an inspection involves a USCIS inspector arriving at the designated workplace unannounced and asking to speak with an employer representative, the foreign worker and the foreign worker's direct supervisor or manager. The USCIS inspector will then ask questions designed to verify the information provided in the underlying visa petition relating to the employer's business and the foreign worker's employment, such as title, salary and job duties. Hot topics in this area include confirming that the employee works at the worksite designated in the underlying visa petition, that the employee is being paid equal to or greater than the salary listed and that the employee is actually employed by the employer designated in the underlying petition (this is a particular issue when the employee works for the employer off-site or at a customer site). It is critical that all responses provided to the USCIS inspector are consistent with the information provided in the underlying visa petition. Additionally, it is common for the USCIS inspector to request that he or she be shown the foreign employee's desk and office space and to perhaps be given a tour of the company's premises, although the USCIS inspector can make any requests, including to review the employee's personnel file or other work-related documentation.
In the H-1B context, these inspections tend to focus on the issues discussed above involving worksite location, salary, and confirming that the employee and employer have a true employee-employer relationship. In the L-1 context, these issues are also focused on, but there are additional issues as well. The USCIS has indicated that it will focus on various areas during these L-1 worksite visits, including:
- confirming that the employer exists, is in business, making contact with the signatory of the petition or the company's human resource representative
- confirming that the human resource representative is aware of the underlying visa petition and the foreign worker
- whether the foreign worker is available to be interviewed
- confirming that the foreign worker is working for the employer as stated in the underlying L-1 visa petition
- confirming that the foreign worker is aware of and performing the job duties as reflected in the underlying visa petition
- whether the foreign worker is being paid the salary reflected in the underlying visa petition
Worksite inspections present some complexities for L-1 visa holders. For H-1B workers, there is no real flexibility in working off-site or being paid below the prevailing wage rate as reflected in the underlying H-1B visa petition and related Labor Condition Application. As there is no Labor Condition Application applicable to L-1 visa petitions, L-1 visa holders have more flexibility and latitude in traveling for business and working at locations not reflected in the underlying L-1 visa petition, and there is no prevailing wage rate requirement.
The bottom line for employers with L-1 visa holders is to be proactive in making certain your organization is fully compliant and your personnel are aware of the possibility of a site visit so you are not caught off guard.