Since March 2005, United States Citizenship and Immigration Services (USCIS) has required a $500 fraud prevention fee from all employers filing new H-1B and L-1 petitions for nonimmigrant workers. Until recently, it was unclear how USCIS had spent or would spend that money. It is now clear: USCIS will use this surplus of collected fees to increase substantially the volume of random, unannounced worksite visits to employers who file petitions for nonimmigrant workers.
Over the coming year, thousands of employers will find USCIS officers from the unit known as Fraud Detection and National Security (FDNS) or FDNS-hired investigators knocking on their doors to ask questions and inspect worksites. Numerous employers have already reported being visited by FDNS investigators who have sought to verify that information submitted in petitions is consistent with the actual terms and conditions of sponsored foreign workers’ employment.
Which Employers are at Risk?
All employers who file petitions for nonimmigrant workers, particularly those who sponsor H, L, R, and TN workers, should prepare for USCIS’ random investigations by developing and implementing response plans for these visits.
How Can Employers Prepare?
Employers should begin by designating an immigration compliance officer and implementing an investigation response plan. The response plan should instruct receptionists and other front-office staff to contact the organization’s designated officer in the event of a site visit. Immediately upon learning that an FDNS investigator is on site, the designated officer should contact the company’s immigration counsel. In addition, employers should determine, in advance, the amount and type of information that they will provide, if any, to the FDNS investigators without a warrant.
The inspectors typically use a script of standard questions that compare the facts stated in the work visa petitions submitted by the employer with the “facts on the ground.” They typically will ask to speak with both an employer representative and the sponsored foreign workers. The company’s immigration compliance officer and the foreign workers should never respond to the scripted questions from memory or with “ballpark” answers. Deviations from circumstances stated in the visa petitions— unless reasonably and of course truthfully explained—may lead to follow-up investigations and possibly enforcement actions.
The best way to prepare for USCIS’ fraud investigations is to determine if improper activity has occured. Employers should ensure that all required immigration documentation is retained properly and in an organized fashion and should undertake internal audits of their immigration compliance practices, such as those relating to I-9 forms and H-1B Public Access Files. Employers should not turn over original documents without getting advice and approval of counsel, making a complete copy, learning the identity and contact information of the investigator, and obtaining an itemized receipt.