PROTOCOLS FOR H-1B FDNS SITE VISIT
By Keshab Raj Seadie, Esq.
The FDNS Directorate (herein also referred as “unit”) is an office within USCIS that conducts unannounced inspections of employer worksites for companies that sponsor foreign workers. The purpose of these site visits is to verify information provided in the petitions filed with USCIS to ensure that 1) the employer did not misrepresent any information, and 2) that the employee is performing services in a manner that is consistent with what was represented in the underlying petition. The FDNS unit presently conducts site visits in connection with several types of benefits, primarily focusing on the H-1B and L-1. In addition, FDNS also conducts site visits for R-1 religious worker petitions. The Trump Administration plans to increase the frequency of FDNS site visits as part of its overall prioritization of immigration enforcement. This may also include the expansion of the FDNS program to additional applications for immigration benefits. How Does FDNS Decide When to Conduct a Site Visit? FDNS was created in responsible to a Congressional recommendation to establish an organization “responsible for developing, implementing, directing, and overseeing the joint USCIS-Immigration and Customs Enforcement (ICE) anti-fraud initiative and conducting law enforcement/background checks on every applicant, beneficiary, and petitioner prior to granting immigration benefits.
Please note that on occasion, FDNS officers do contact subjects of an investigation in advance of site visits. This is a courtesy and a DHS Office of Inspector General's report suggests that the agency should strive for all site visits to be unannounced. 9 FDNS also performs inspections of other benefits, but this article will focus on FDNS visits in the context on employment-based nonimmigrant visas.
FDNS presently makes two types of site visits: 1) the first under the Administrative Site Visit and Verification Program (ASVVP), whereby employment-based petitions are randomly selected for inspection, and 2) the second as part of targeted site visits generated in one of three ways: when the Validation Instrument for Business Entities (VIBE) system identifies a potentially fraudulent business entity; a referral from the US Department of State; or a referral from USCIS or another law enforcement or government agency when fraud is suspected. At the present time, ASVVP visits are most common and typically involve an unannounced visit to request responses to general questions about the petition. Common questions asked on site include a request to describe what the foreign national employee does or a request to inspect their work area or to speak with their supervisor. An ASVVP visit is often followed with an email from the FDNS officer asking the foreign national employee or the petition signatory/contact to verify certain information within a certain number of days. It is important to note that officers sometimes ask questions about matters that may not be material to the underlying benefit granted. Email inquiries, if sent in advance of an in-person visit, are typically followed by on-site visits, which can either be announced or unannounced. Trump Administration Initiatives The administration has indicated that it intends to expand targeted visits and has criticized the ASVVP system as being ineffective due to inconsistencies in the way that worksite visits are conducted and data collected.11 The administration is also expected to expand the use of site visits for employment-based petitions other than for the H-1B and L-1, along with increasing targeted site visits for H-1Bs to a goal of 20,000 annual visits.12 How Do You Advise a Client Faced with a FDNS Site Visit? Now that you have calmed your client contact, they want to know what to do. The important takeaway is that cooperating with a FDNS officer is often the best way to facilitate a successful conclusion to the visit.
Here are some practical suggestions:
- The employer has the right to request the FDNS officer's name and business card to verify that the are a legitimate agent of the United States government.
- While most FDNS officers will not postpone a site visit to permit legal counsel to join, they will typically permit a lawyer with a G-28 on file to join by telephone. The company representative can explain that the purpose of having immigration counsel on the phone is to ensure that they fully understand the questions asked by the officer and present the most accurate and complete responses.
- Some employers will ask if they can choose not to participate in the site visit or if they can refuse the FDNS officer entry onto the premises on the grounds that company policy may dictate that a subpoena is required. The counsel that we typically provide our clients is that the best course of action is to cooperate with an FDNS investigation. The regulations governing the adjudication of immigration petitions permit the agency to conduct broad fact finding, which can include taking testimony. In addition, the USCIS form instructions do warn that USCIS may conduct site visits to verify information. Most visits last anywhere from twenty minutes to an hour. Denying an FDNS officer the ability to inspect the job site and/or to speak with the signatory, manager or employee may be interpreted as an effort to obstruct the investigation. Accordingly, it may result in a more comprehensive list of questions being sent by email following the site visit and/or a quicker referral to USCIS for revocation. Given the Trump administration's stated prioritization of targeted site visits, failing to cooperate in an FDNS site visit could also jeopardize future employment-based visa petitions or applications filed by the employer.
- During a site visit, FDNS officers will often ask for paystubs, W-2s, organizational charts as well as the ability to speak with both the company signatory as well as the foreign national employee. In our experience, the foreign national employees tend to be the most nervous. Reassuring them that ASVVP site visits are often random and that statistically only a tiny fraction of cases are actually referred for revocation generally serves as a confidence booster. In addition, we do recommend that the company representative ask to be present as the FDNS officer interviews the employee and takes notes throughout the process, including retaining copies of any documents provided. While the officers will not always agree to the former, having a company representative present serves as an additional form of reassurance for the employee.
- If a foreign national employee is not physically present due to vacation or authorized leave, it is permissible to ask the officer to re-schedule a site visit for another date. An issue that some employers unwittingly run into is if they allow an employee to work from home without taking the requisite steps to ensure compliance with all of the regulations governing the Labor Conditions Application.
- FDNS site visits can be conducted at third-party worksites, so employers should inform clients of this possibility and instruct them to contact their company immediately. Questions being asked during the 3rd party FDNS site visit include but not limited to:
Employee's job title and job duties and qualifications required to perform the underlying job duties.
Who is the manager in-charge of H-1B worker at the end client site?
Who controls the day to day activities of the H-1B worker and who provides tools and instrumentalities to do the job?
What is the role of H-1B employer in managing and controlling the work of H-1B worker while s/he is posted a the end client site?
Officer will ask these questions to the H-1B employer, H-1B employee and the end client Manager separately and compare the notes to see whether there is a bonafide job matching with the approved I-129 petition and H-1B employer has real control over the H-1B worker.
- H-1B dependent employers are more likely to get site visits. Employers with H-1B dependency have to be able to demonstrate that they are making good faith efforts to avoid displacing US workers and/or maybe exempt from the attestation requirements. H-1B dependent employers should have a clear line process in place in terms of how to address FDNS site visits.
- FDNS officers typically ask questions from a standard list. Common questions that employers can expect to see include: General description of what the company does; Confirmation of company's annual revenues, number of employees, and the foreign national employee's start date; The number of individuals the company has on H-1B and L-1 visas; Number of employees at the location visited; The foreign national's job title, job responsibilities, hours of employment and salary; The foreign national's employment history and highest level of education, as well as how their education relates to the job offered; Paystubs for employees supervised by the foreign national, in addition to the foreign national's paystubs and W-2s; Organizational chart for the U.S. entity; Organizational chart for the related foreign entity (in the event of an L-1 site visit); Company tax returns; and Contracts or other documentation evidencing an end-client relationship for a foreign national that is placed offsite. The best advice that I can give you is:
1) to have a clearly articulated point person in place that is familiar with the purpose of an FDNS site visit;
2) ensure that all company personnel (receptionists, etc.) know to immediately contact the designated point person in the event of a site visit;
3) ensure that the point person is generally aware of where to locate information that is requested by FDNS (i.e. organization charts, paystubs, etc.);
4) have the point person immediately contact legal counsel during and after the site visit to ensure that the employer has a contemporaneous account of what was asked;
5) properly train the point person to ask them to request additional time to respond in the event that they cannot answer a question that an FDNS officer lodges.
6) make sure to talk to the end client manager and H-1B employee ane explain to them s/he is working at the end client as an Independent Contractor and cannot managed or controlled by the end client manager.
7) provide a copy of the LCA and H-1B petition letter to the H-1B employee and end client manager so that all parties are familiar with actual job title, job duties and qualifications of the H-1B worker.