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H-1B and L-1 USCIS and FDNS Site Visit

USCIS’ FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to H-1B Employers and Their Clients

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.

Preparing the supporting documentation for the Labor Condition Application (LCA) is the core of the employer’s responsibility. The employer must be careful to meet the DOL requirements for the content of that documentation and for its retention and availability. The DOL recognizes two types of supporting documentation: (1) documentation which must be made available in a public inspection file within one working day after the date of filing the LCA with the DOL, and (2) documentation which must be made available to DOL investigators “upon request.” It is important for employers to distinguish between the two types of documentation, and put into the public inspection file only the documentation required by regulation to be there.

As of 2014, USCIS’ FDNS has expanded Site Visits to L-Visa Employees and Employers

The U.S.C.I.S. announced early in 2014 that it will begin conducting work site inspection visits to L-1 employers under the Fraud Detection and National Security Division’s inspection program. This comes as a response to a new report “Implementation of L-1 Visa Regulations” released this year to assess USCIS’s intra-company transferee program. The report makes suggestions which would help prevent fraud from L- visa program participants. The Office of the Inspector General found that L-1 petitions were often erroneously approved with little regulation, now the former H-1B FDNS work site visits have been extended to cover L-1 and L-2 Visas.

What is an Audit?

An Audit is conducted by the Wage and Hour Division of the US Department of Labor (DOL) or United States Citizenship and Immigration Services (USCIS) to determine if an employer is in compliance with the existing laws and regulations. The Labor Audit could be the result of multiple causes including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. As a part of this Audit, the DOL or USCIS would send a letter requesting the employer to produce the public access file along with the immigration and wage records.

Preparing the supporting documentation for the Labor Condition Application (LCA) is the core of the employer’s responsibility. The employer must be careful to meet the DOL requirements for the content of that documentation and for its retention and availability. The DOL recognizes two types of supporting documentation: (1) documentation which must be made available in a public inspection file within one working day after the date of filing the LCA with the DOL, and (2) documentation which must be made available to DOL investigators “upon request.” It is important for employers to distinguish between the two types of documentation, and put into the public inspection file only the documentation required by regulation to be there.

Why Does an Audit Occur?

The Labor or H-1B Audit could be the result of multiple causes including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. Approximately 80% of Audits arise due to employee complaint. Common employee complaints include benching and back wage issues, and the breach of one-year employment contracts. US Embassy and Consulate Referrals contribute to approximately 15% of audit initiatives. These referrals are often the result of suspicion of fraudulent degrees and work experience, fraudulent in-house IT projects, fraudulent letters from End Client Site and W-2s demonstrating wage paid is less than the H-1B required wage. Approximately 10% of Audits are the result of random selection.

Who Performs the Audit?

An Audit may be initiated by the Department of Labor (DOL) or by the United States Citizenship and Immigration Services (USCIS). If the audit is initiated by the DOL, an Investigator from the Wage and Hour Division will be assigned to lead the audit. The Fraud Prevention Unit of USCIS may also audit an Employer suspected of violating H-1B program mandates, or other immigration matters.