This article originally appeared on HospitalityLawyer.com.
Employers who employ H-1B, L-1, R-1 foreign nationals, or are pursuing EB-5 immigrant investor program visas should prepare for the likelihood of an unannounced site visit by the government.
The USCIS Fraud Detection and National Security (FDNS) Directorate was established to investigate and prevent immigration benefit fraud. Its mission is to detect, deter, and investigate immigration-related fraud through various policies, procedures, and programs.
In July 2009, as an additional way to verify information in certain visa petitions, USCIS started the Administrative Site Visit and Verification Program (ASVVP). Under this program, immigration officers in the FDNS Directorate make unannounced site visits to collect information as part of a compliance review, which involves immigration officers conducting compliance reviews to ensure that petitioners (employers) and beneficiaries (employees) follow the terms and conditions of their petitions. This process includes reviewing the petition and supporting documents, researching information in public records and government systems, and, where possible, interviewing the petitioner and beneficiary through unannounced site visits. Participation in the compliance review process is voluntary. FDNS immigration officers will end a site visit if the petitioner or beneficiary expresses an unwillingness to participate. Although the program is voluntary, petitioners and beneficiaries are strongly encouraged to participate.
Site visits most often occur without prior notification at various locations, including principal places of business and remote work sites. Given the increased enforcement and extreme vetting policies, it is crucial for clients to be prepared for potential site visits. USCIS uses the Fraud Detection and National Security Data System (FDNSDS) and a screening feature called ATLAS to track and review cases more effectively. These visits typically last about an hour and involve verifying details in H-1B, L-1, and R-1 visa petitions, reviewing documents, and interviewing employees. Employers should have a plan of action and may request an attorney’s presence during these visits, either in person or by phone.
Typical questions during a site visit include the employee’s job title, responsibilities, work location(s), and salary. The officer/agent may also ask about education, previous employment, residence, and family members in the U.S. If possible, the employer should pull the employee’s file and review the LCA and I-129 visa petition.
What should an employer do if faced with an unexpected site visit?
- Prepare the receptionist or first person who will face a visitor to the employer’s facility with what they should do if a USCIS officer/agent comes in and announces they are there to conduct an administrative site visit.
- Request identification and a business card to confirm the officer/agent’s identity.
- Never speak with the officer/agent without a witness present.
- Take notes. Call your attorney. If your attorney is not available at the time of the interview, pass along those notes as soon as possible afterward.
- The officer/agent most often will have a copy of the visa petition. Employers should retain a secure, confidential file with copies of all USCIS petitions, or tell the inspector that your attorney keeps copies of all visa petition filings on behalf of the company. The inspector should allow the employer to have their attorney provide the requested copies.
- If the inspector asks to interview the employee, make a determination if the employee works at that office location and if the employee is in the office that day. If so, provide the employee with a copy of the petition before meeting with the inspector. Allow the employee some time to review the contents—i.e., job title, job duties, job requirements, salary. The employer should be present when the officer/agent meets with the employee.
- If your H-1B employee is working at a client site, notify the client about the ongoing H-1B inspection. Should an officer/agent arrive there, have the client contact you immediately before responding to any questions.
- If your H-1B or L-1 employee is working remotely, advise the officer/agent of the location where the employee works. The officer/agent may want to visit the employee in person or conduct an interview by phone.
- Try to limit an officer/agent’s access to the public areas at your facility. Have someone accompany the officer/agent while in the facility, and the employer can even record the visit.
- If either the employer or the employee is unsure about any information, say so. It’s better to state that you need to verify the details before answering.
- Keep responses focused. Don’t volunteer extra information. Remember, any negative details may be used to deny or revoke petitions, so answer truthfully and succinctly.
Once the site visit is concluded, the officer/agent may give the employer a list of additional information they would like to receive. We recommend providing your attorney with a summary of the site visit and providing any requests for additional information to your attorney, who can respond to the officer/agent on the employer’s behalf.
While the likelihood of being subject to an Administrative Site Visit (ASV) is relatively low, it is crucial for employers, especially those with H-1B and L-1 workers, to be aware and be prepared. Having a plan of action and understanding the procedures can help mitigate any potential disruptions.
Employers should feel free to reach out to any of our immigration attorneys who can provide guidance on Administrative Site Visits.
About the authors:
Frances P. Rayer is experienced in the immigration field, where she represents institutional clients and multinational corporations who are seeking to employ foreign nationals in the United States on either a temporary or permanent basis.
Kelli Natrin concentrates her practice on employment and family-based immigration. Most recently, Kelli was a senior business immigration law clerk with Cozen O’Connor’s Immigration practice group. She also brings over a decade of experience as an immigration paralegal handling a high volume of cases. As a paralegal, Kelli gained valuable experience conducting research, preparing petitions, and filing responses on behalf of the firm’s corporate and individual clients. Specifically, she has experience providing nonimmigrant and immigrant case management for clients, including preparation and filing of H-1B, L-1, E-2, TN, O-1, PERM, I-140, Adjustment of Status, and Requests For Evidence.
