U.S. Citizenship and Immigration Services (USCIS), through its Office of Fraud Detection and National Security (FDNS), has implemented an on-site audit program that subjects H-1B employers to random site visits to verify information provided in H-1B petitions. The FDNS Web site is located via the USCIS Web site. FDNS’s mission is to detect and deter immigration fraud as well as to make sure that benefits are not provided to anyone posing a threat to national security or public safety. According to USCIS, more than 14,000 H-1B site visits have been conducted so far during the fiscal year that began October 1, 2009.
FDNS site visits are unannounced. They take place at the employer’s principal place of business and/or at the workplace location indicated on the H-1B visa petition filed with USCIS. FDNS uses these visits to verify information about the company and to confirm that the H-1B employee is actually working in compliance with the information provided in the visa petition, including hours, job duties, rate of pay, and education requirements.
During a typical site visit, the FDNS inspector will ask to speak to both a company representative, usually the individual who signed the visa petition for the company, and to the H-1B employee. The inspector also may interview other employees to further verify the information provided. Inspectors usually tour the workplace, take photos of the facilities, and review company documents such as payroll records and tax returns, to ensure that the business is bona fide. Although inspectors will not reschedule site visits to accommodate the presence of legal counsel, participation by telephone is permitted.
In addition to verifying compliance with the H-1B regulations, information gathered during the site visit is fed into the USCIS fraud detection database. USCIS uses this information to develop employer profiles and to review patterns and practices that could indicate fraud. FDNS refers suspected fraud cases to the U.S. Department of Labor or U.S. Immigration and Customs Enforcement, which may result in further investigation and the imposition of penalties or even criminal prosecution.
H-1B employers should have action plans in place that employees can follow in the event of an unannounced FDNS audit. Any employees who may potentially be involved in the site visit should be made aware that this type of audit is possible. They should be advised of what the site visit involves and what actions they should take such as contacting counsel; requesting the name, title, and contact information of the site inspector; and accompanying the inspector at all times during the site visit. A confidential file containing a complete copy of all H-1B visa petitions filed by the company should be maintained for ready reference in the event of an audit. Some employers also may find it worthwhile to stage a mock FDNS site visit under the supervision of counsel to prepare employees for what to expect and how to respond.