As we have mentioned in previous articles, it has come to our attention that USCIS officers have begun to make unannounced workplace visits to L-1 employers.  The USCIS has a program known as the Fraud Detection and National Security (“FDNS”) site inspection program, which traditionally has primarily concentrated on H-1B employers.  We believe, however, that in the coming months, the worksite visits to L-1 employers will also become a regular part of USCIS’s efforts to crack down on perceived fraud.

Fueled by the August 2013 report by the Department of Homeland Security (“DHS”) Inspector General urging USCIS to focus more on L-1 employers to detect any fraudulent L-1 petitions, we believe that USCIS will focus on first extensions of L-1 petitions originally filed at USCIS Service Centers.  In particular, these inspections will most likely target new business/office L-1 extension petitions.  It is unclear to what extent blanket petitions, if any, will be part of this investigative process.

Which Employers Receive these Site Visits and Who Gets Questioned?

It is all random.  In general, USCIS randomly selects a group of L-1 petitions to review and conduct worksite visits.  These cases are assigned to FDNS (USCIS) officers, who visit the premises of sponsoring employers to verify:  (1) the existence of the employer, (2) the validity of the information the employer has provided in an immigration petition, and (3) whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States.

In other words, USCIS generally shows up without notice and will spend 30-90 minutes at the worksite, investigating various issues relating to the L-1 petition.  The officer usually asks to speak to: (1) an employer representative, such as a HR manager, (2) the foreign beneficiary of the petition in question and (3) his or her direct supervisor or manager.  In some cases, the officer will ask to tour the employer’s premises and the foreign national’s work area, and may want to photograph the premises.  The employer may be asked to provide documents like payroll records or pay stubs for the foreign national.

In fact, multiple visits to an employer’s worksite are also possible.  If an employer has multiple H-1B and/or L-1 employees, it may receive more than one visit, with each visit pertaining to a specific nonimmigrant petition.  In addition, an FDNS officer could return to the premises to follow up on a previous visit.

What is the Purpose and Focus of these L-1 Site Visits?

The purpose is to detect any fraud.  As with the H-1b site visits, the ultimate goal of the FDNS officer is to determine if the information provided in the L-1 petitions are true and accurate and not fraudulent.  To that end, as stated above, the L-1 worksite visits will be used to:  (1) verify the existence of the employer, (2) the validity of information in the employer’s petitions and (3) whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States.

Questions relating to the Foreign National & Position

The officer will generally want to question the HR representative and the foreign national about the foreign worker’s job title, responsibilities and salary, as well as those of other employees in similar positions.  The officer may also ask about the foreign national’s education, previous employment, residence, and family members in the United States.  For L-1A managers, for instance, USCIS may question whether the manager in fact performs any administrative tasks.  Salaries may also be reviewed to determine whether they are consistent with the job type and experience of the employees.

In essence, the FDNS officers will review the actual job duties observed at the worksite, to determine whether they are consistent with the foreign beneficiary’s classification as an L-1A executive or manager or an L-1B specialized knowledge worker.

Questions relating to Employer Business in General

During the site visit, the USCIS officer may further ask about the employer’s business in general, annual revenue and the number of employees at a particular location, in the United States or worldwide.  The officer may also ask whether the employer actually in fact signed and filed the immigration petition, to make sure that it was not filed fraudulently, and may also ask about the employer’s overall use of specific immigration programs.

Even after a site visit, the officer may wish to collect additional information or follow up on any information.  If there is a discrepancy between the information in an immigration petition and the circumstances at the worksite, USCIS may notify the employer of its intent to revoke the petition.  At that point, the employer will have an opportunity to rebut or sometimes may file an amendment petition to reflect changes in the worker’s employment situation.
In the end, FDNS officers use the information collected during these worksite visits to help USCIS develop a fraud detection database.  FDNS officers gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could indicate fraud.
How to Handle the Site Visits?

In the end, FDNS officers use the information collected during these worksite visits to help USCIS develop a fraud detection database. FDNS officers gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could indicate fraud.

Be informed and be prepared.  First, when an FDNS officer or contractor appears at your company location, you should ask to see his or her identification and business card.  If you have any concerns about the visitor’s credentials, you can call the telephone number on the business card to verify the visitor’s authority.

In general, the officer will have a copy of the specific immigration petition, and the officer will ask, at the very least, to speak to an employer representative, such as a HR manager.  During the site visit, the company representative should take detailed notes.  If any company documents are provided to the FDNS officer, the company representative should be sure to list the documents provided and retain copies of them.  If the FDNS officer takes photographs of the premises, the representative should ask for copies of them.

Can Counsel be Present?

Yes. We can help.  The employer can ask to have counsel present during the site visit, especially if the attorney has submitted a Form G-28 notice of appearance, confirming that the company has legal representation in connection with each petition it files.

Generally, the officers will not reschedule a site visit just so that an attorney can be physically present, but may agree to allow counsel to be “present” by phone.

If you do have a site visit, it is imperative to cooperate, and it is highly recommended to contact your immigration counsel for guidance and advice