Understanding Site Visits & H-1B Compliance

Understanding Site Visits & H-1B Compliance

In September 2008, USCIS issued a report on H-1B Benefit Fraud & Compliance Assessment. This report found that there was 20.7% rate of either fraud or technical violations in H-1B petitions. As a result, USCIS initiated the Administrative Site Visit and Verification program as an additional measure to verify information in certain visa petitions. Under this program, the USCIS Fraud Detection and National Security (hereinafter referred to as “FDNS”) officers collect information and make unannounced visits to an Employer's place of business to ensure that both the Employer and the Beneficiary are complying with the provisions outlined in the nonimmigrant petition.

The following nonimmigrant petitions are subject to site visits: religious workers, H-1B, and L-1.

What Happens During a Site Visit?

During the compliance review, the site inspector will: verify that the Employer exists; review and verify the supporting document submitted with the nonimmigrant petition; and, conduct a site visit. During the site visit, the inspector will engage in the following tasks:

  1. The inspector will evaluate the public aspects of the employer's premises to determine if the address on the petition matches the address where the employer actually conducts the business. The inspector may interview businesses nearby to verify the location and existence of the business. Also, the inspector may take a tour of the business and its facilities to ensure the Employer is engaged in legitimate business activities. The inspector may take photographs during this time.
  1. The inspector will also talk to the employer, or a company representative who has knowledge of the company. The Inspector will work from a standard list of questions. The inspector will ask questions on the following topics: employer’s business, annual revenue, and worksite. The inspector will also ask questions regarding the nonimmigrant petition and the beneficiary. These questions can cover a wide array of topics such as the beneficiary’s position, job duties, salary, qualification of the position, education, and previous employment and immigration history. The employer should furnish all evidence of the beneficiary’s employment. Examples of evidence would include offer letter, payslips, W-2, employment contract, etc. If the beneficiary is no longer there, the H-employer must provide proper documentation of employment termination.
  1. The inspector may also interview the beneficiary. The inspector will want to ensure that the Beneficiary is complying with all the conditions in the nonimmigrant petition. In addition, the inspector will ask about the beneficiary's employment, and his/her position. The inspector may ask questions to the beneficiary about who paid the costs of the nonimmigrant petition.

The site inspectors document the information and observations and produce a compliance review report. This report is then reviewed by their supervisor to determine whether the employer and the beneficiary are following immigration guidelines and requirements.

The Employer’s Response

There are a few things employers can do to prepare or a site visit:

  1. Ask to see the officer’s identification. Ensure that the person investigating you is from USCIS.
  1. Have legal counsel present. During the site visit, it may be helpful to have legal counsel present to ensure the investigator is complying with the law. However, since these site visits are unannounced, it may be difficult to have legal counsel present. As an alternative, employers could have counsel on the phone during the course of the site visit.
  1. Cooperate with the investigator making the site visit. Employers subject themselves to reasonable inquiries from the government when they submit petitions for immigration benefits. If an employer fails to cooperate with inspectors, it could jeopardize an employer’s pending petition and its ability to participate in U.S. immigration programs.
  1. Do not guess when the investigator asks questions. The officer may ask for very specific information during the site visit. If it is not possible to provide an exact answer to the question, do not guess an answer. The employer should request a reasonable amount of time to gather the information sought by the investigator.
  1. Keep records. The employer should possess a copy of all nonimmigrant petitions and supporting documents in a confidential file. The employer should periodically check that the beneficiary is complying with all conditions outlined in the immigrant petition.
  1. File Amendments. If any material facts (job site, job duties, job title, salary, etc.) in the petition change, the employer should file an amended petition to ensure the petition reflects the current employment. If there is a discrepancy between the information, that can serve as grounds for revoking the nonimmigrant petition. 

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