Beware of Unannounced USCIS Site Visits
The United States Citizenship and Immigration Service (USCIS) is currently auditing the H-1B nonimmigrant program for fraud and is sending its Fraud Unit investigators into the “field” to collect data. As part of the audit procedures, these investigators are visiting H-1B employers (small and large) and interviewing authorized officials and human resources personnel. They are also speaking directly with H-1B employees. These site visits typically last 1 hour or less. H-1B employers may request that their immigration attorney be present, although it is in the USCIS’ discretion whether they agree to re-schedule the visit to accommodate this request. As an alternative, employers are permitted to have their immigration attorney present on the phone listening to the questions being asked. We strongly recommend that our clients contact our office immediately upon being visited so that we can ensure the USCIS is not overstepping its bounds in the investigation. Please see below for more tips and recommendations.
The USCIS’ questions for the employers relate to the number of employees overall, the number of H-1B employees, gross income, net income, and type of business, among others. Investigators are also requesting tours of the business premises, during which photographs are taken. Please note that it is the current position of the USCIS that investigators do not need a warrant to enter confidential/private areas in the office or facility. To date, this has not been challenged and thus remains the current practice. Please see below for tips about how to best handle site visits and these types of requests.
H-1B employees are asked different questions pertaining to their job title, job duties, salary, and work location. In some instances, investigators speak to the H-1B employee’s co-workers as well to identify any inconsistencies with the information provided by the employee. Please note that investigators have visited client sites as well as the principal place of business to speak to H-1B employees. We recommend that the H-1B employer inform any end-clients that these types of USCIS visits could occur and instruct them to contact the H-1B employer immediately if visited. The end-client should request that the H-1B employer either be present or be on the phone listening to the questions asked.
Although these site visits sound daunting, there are several things an H-1B employer can do to ensure they go as smoothly as possible:
Inform first-line personnel and staff that a site visit may occur and instruct them to welcome the investigator properly, showing cooperation
Meet with the investigator and ask for his/her name and contact information or his/her business card
Request that the employer’s immigration attorney be present
Consult with immigration counsel before answering any questions that you are unsure about
Take notes on what is being asked
Answer all questions honestly, reserving the right if necessary to answer later any questions that cannot be answered on the spot. Do not feel you have to respond to the questions when you are unsure of the answer. Simply tell the investigator that you need to look into it further before providing information.
On a tour of the facility, feel free to re-direct investigators away from confidential/private areas or, at a minimum, explain that as a standard practice photographs are not permitted in confidential/private areas of the company
Keep company records organized, especially records pertaining to any H-1B employees, so as to be able to show the investigator if asked
Accompany the investigator when he/she speaks to the H-1B employees and co-workers and take notes
In general, maintain a cooperative attitude throughout the process while at the same time asserting your rights
If you have any questions, concerns or comments about these site visits, please don’t hesitate to contact our office.
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