Update on USCIS Site Visits to H-1B Employers

A Freedom of Information ACT (FOIA) request has resulted in the release of a confidential memo from the U.S. Citizenship and Immigration Services (USCIS) Fraud Detection and National Security Directorate (FDNS). FDNS investigates a host of non-immigrant and immigrant visa applications. The memo, dated June 3, 2013, provides some insight as to how FDNS is conducting itself as to H1B employers, with in-person site visits conducted by USCIS .

First and foremost, the memo indicates that USCIS plans to continue site visits to H-1B employer sites. Since being implemented in December 2011, through June 2013, approximately 57,000 US employers were visited, but this includes religious worker visas as well. Site visits became a major initiative after a USCIS memo released in 2008 indicated issues and concerns with fraud in the H-1B context. The “site visit” involves a USCIS FDNS agent who makes an unannounced visit to the US employer at the address listed on the I-129 Form, to verify that the H-1B employee is working under the terms of his or her respective H-1B petition. Particularly, it will review whether the employee is working at the correct location and being paid the correct wage, as well as to determine if there are any issues with fraud. The Memo confirms this and clarifies that it is not targeting specific employers who may be engaging in fraud. The Memo also confirms that the purpose is to determine compliance with the parameters of the job as set out in the H-1B application. As such, US employers who sponsored someone on an H-1B should be prepared for a site visit, regardless of size or integrity.

The best way to be prepared is to maintain a file, such as the Public Access file as required under Department of Labor regulations for the H-1B person. The Public Access File already has data that is relevant to a site investigator, such as a copy of the Labor Condition Application, wage information, H-1B applications and/or approval notices, and any changes to the employee’s wage, hours etc.

A Labor Condition Application and an H-1B application may have to be amended if job location, employer location, wage or job duties changed. This is something an H-1B attorney can assist with. In any event, it is problematic if information is not up to date because the USCIS FDNS officer will go to the location listed on the I-129 application.  If there are inconsistencies between the H-1B application and what the officer vets from an on-site visit, USCIS can issue a Notice of Intent to Revoke the H-1B which results in much time and energy in responding and even possible revocation.

For best practices on maintaining your H-1B staff, please contact Catherine Brown in Colorado for assistance.