Just over a year ago, President Trump signed his "Buy American, Hire American" executive order which has since reshaped American immigration law. As part of this directive, the Department of Justice (DOJ) began an aggressive site visit program to ensure employers of foreign nationals are in total compliance with H-1B and L-1 visa requirements. These visits by the Fraud Detection and National Security Directorate (FDNS) are typically unannounced. As such, it is important to be prepared in advance. Here is some general information on what to expect and how to prepare.
1. Have a protocol and communicate with your employees.
The employer should have a protocol in place in the event of a site visit. The importance of a smooth and cooperative inspection cannot be stressed enough. Noncompliance, outdated/mismatching records or failure to fully cooperate with FDNS could jeopardize the visa petition at stake and potentially cause denials of your company's future petitions.
Be sure appropriate employees (the human resources department, the individual signing the visa petition and the foreign national) know about this inspection program and understand what will be expected of them during a site visit. A brief discussion with employees not involved with H-1B and L-1 visas might be something to consider to prevent any alarm they might have from a government inspection.
2. Know what questions will be asked.
The officer will ask the employer details of the foreign national's position, duties and terms of employment. FDNS will also ask the visa beneficiary to see valid identification, about their job title, duties, employment dates, location, résumé (prior work history and education), their current address, immigration history and any dependents. If the FDNS officer asks to see a business card, be sure that the foreign national's card is consistent with the submission on the visa petition. FDNS may ask to speak with one of the foreign national's coworkers to verify the information they have received from the employer and foreign national.
3. Double check the premises and paperwork.
The officer will inspect the premises to determine if the business is legitimate and engaged in appropriate activities. The officer might ask to tour the facility and photograph the grounds. Ensure that the address on the petition matches that of the premises and be aware that the officer might ask neighboring businesses and/or residents to verify the location and existence of the petitioning business.
Examples of forms FDNS will want to check include the visa applicant's recent paystubs, payroll records, the latest W-2 form, the company's tax returns, quarterly wage reports, etc. Since USCIS regulations do not require that L-1 visa holders be paid from a U.S. payroll, tell the FDNS officer if that is the case and let them know records can be furnished if necessary.
It is very important to have trusted counsel to guide you through these types of processes and to ensure compliance, especially in this ever-changing environment.
