USCIS has recently notified local immigration attorneys that the FDNS (Fraud Detection and National Security) has stepped up its local inspections of H-1B temporary workers in the Bay Area. USCIS started on-site fraud inspections related to nonimmigrant visa petitions in 2008. Since then, thousands of worksite inspections have taken place. In July 2009, FDNS implemented the Administrative Site Visit and Verification Program (ASVVP) to conduct unannounced site inspections to verify information contained in certain visa petitions. USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection.
The following scenario is typical for a site visit. FDNS inspectors will show up unannounced at the work site, and ask for the employee. The employer is not necessarily notified of the visit when the inspector arrives, but the employee can notify the employer or HR of the visit. The Inspector will usually ask to see the employees desk, and ask questions related to the employee's I-129 Petition job duties. Note that the Inspector does have a DHS badge, but it is generic, and does not have a name on the badge. If employer's are uncomfortable, they can ask that the review be rescheduled, which may or may not be honored. The visit does not include a review of the public access file, which is DOL's responsibility.
The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.
The American Immigration Lawyer's Association (AILA) recommend the following:
Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.
If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.
The following scenario is typical for a site visit. FDNS inspectors will show up unannounced at the work site, and ask for the employee. The employer is not necessarily notified of the visit when the inspector arrives, but the employee can notify the employer or HR of the visit. The Inspector will usually ask to see the employees desk, and ask questions related to the employee's I-129 Petition job duties. Note that the Inspector does have a DHS badge, but it is generic, and does not have a name on the badge. If employer's are uncomfortable, they can ask that the review be rescheduled, which may or may not be honored. The visit does not include a review of the public access file, which is DOL's responsibility.
The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.
The American Immigration Lawyer's Association (AILA) recommend the following:
Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.
If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.
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