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Employers of L-1 intra-company transferees should be prepared for unannounced workplace site visits from the U.S. Citizenship and Immigration Services’ (USCIS) Fraud Detection and National Security (FDNS) division, which announced it was expanding its inspection program to include such employers in 2014.
Since 2009, FDNS has conducted tens of thousands of unannounced inspections of H-1B employers in an effort to root out fraud and abuse in the visa system. The expansion of visits to L-1 employers comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) which among other recommendations, called for mandatory inspections by USCIS prior to extending “new office” L-1 petitions. A new office petition is filed by multinational companies in the process of launching a new office in the United States to send an executive, manager or specialized knowledge worker to help start the operation for an initial period of one year. New office beneficiaries who wish to extend their stay after the one-year period can submit an extension request to remain in the United States for an additional two years. The beneficiary can be approved for up to two extensions and stay for a total of seven years.
The OIG report found that new office petitions and extensions are inherently susceptible to fraud and abuse because much of the information in the initial petition is forward-looking and speculative. Some of the issues that were found include the lack of a realistic business plan, vague staffing structures, managers who perform nonqualifying work as a central part of their job, and inconsistencies in how the beneficiary’s managerial or executive job is described.
“One-year new office petitions tend to be an area with potential for fraud,” observed Beth Carlson, counsel at Faegre Baker Daniels, based in Minneapolis. “USCIS is looking to see if you really have a business plan, and are you really going to go through with your business plan. USCIS considers things such as the number of employees, growth in revenues, attainment of significant clientele, and other elements indicating that the entity has been actively engaged in business activities.”
“We’ve heard these site visits were coming, and likely coming in a major way,” said Justin Storch, manager of agency liaison for the Council for Global Immigration. Storch cautioned L-1 employers that while it remains uncertain what the scope of FDNS site visits will be, “L-1 audits are likely to include all types of L-1 petitions, not just new office petitions.”
Eleanor Pelta, a partner at Morgan Lewis, based in Washington, D.C., advised employers keep their legal counsel informed of any changes to L-1 employment, such as job duties, work location, or placement at a client site, to ensure that any changes are reviewed and discussed and that any necessary amendments are made to the L-1 petition.
Chosen for a Visit
An FDNS site inspector or private investigator contracted by the agency will show up at the work location stated on the Form I-129 petition,
typically without notice, to verify the validity of information submitted on the petition and compliance with the terms and conditions of the relevant immigration status, and to confirm the existence of the petitioning employer and legitimacy of its operations. “Overall, they want to make sure people are working where they’re supposed to be working and what is outlined in the L-1 petition is true,” said Carlson.
Specifically, this may include confirming that the stated job duties are in line with the beneficiary’s classification as a manager or executive (L-1A) or an employee with “specialized knowledge” (L-1B), and verifying that the wage of the L-1 employee is at least at the level noted in the petition and is consistent with the listed duties and level of experience, noted Nicole Brooks, immigration client resources manager at Ogletree Deakins, based in Raleigh, N.C.
The visits typically last between 15 minutes to an hour and can take place at any time during the workday, said Pelta. “In the event that an employer learns in advance that a site visit will occur, the employer is advised to contact its legal counsel immediately,” she said.
Site inspectors may ask to review documents, speak with company representatives, and interview the beneficiary of the petition and his or her manager. FDNS officers may also request a tour of the employer’s premises and the beneficiary’s workspace.
Preparing for a Visit
Employers should prepare for the expected site visits by implementing front-end best practices and procedures for managing inspections, experts agreed. This preparation begins by gathering the relevant stakeholders, said Allyson Gonzalez, associate director for staffing at AT&T. “You’ve got to consider who needs to be involved in this process. For us, that includes immigration counsel, in-house counsel, building management, human resources and procurement.” Next, you’ll have to figure out who will own the process, she said. “It’s important to have an open dialogue and determine where the best place is for your organization to house this process. Additionally, you’ll need to determine if you need a new policy or whether you can update your current policy regarding site visits.”
As with any inspection, front-line personnel must be trained. The company needs to alert the appropriate front desk or security personnel of the expectation of the visit, said Carlson. She also advised determining a single point of contact for any personnel approached by an FDNS officer.
“One of the most important things to do is educate your foreign national employee population and their supervisors about the site visits, so that if an officer shows up and asks to speak to an employee, they’ll be aware of what’s going on,” said Gonzalez.
The beneficiary of the petition should be made available for an interview with the inspecting officer if asked for, said Pelta. However, she advised that an immigration manager also be present. “If the officer insists on meeting alone with the employee, the immigration manager should contact legal counsel by telephone and have a lawyer speak directly to the officer. The purpose of the immigration manager’s presence is not to limit the responses that may be proffered by the employee or to restrict what he or she may say, but simply to ensure that inappropriate liberties are not taken by the officer and that the discussion does not exceed its proper scope,” she said.
It’s critical that the employee provides the correct information to all questions asked, said Gonzalez. However, if the employee feels that they’re not prepared for the meeting, or need additional time to gather the documentation needed, you can request to reschedule the meeting with the officer, she said. Some of the documentation the officer may ask for includes a copy of the foreign national’s identity documents, a business card, most recent paystub, and last Form W-2.
Don’t expect any resolution from an FDNS site visit, said Pelta. “There is no formal outcome … and the employer will not be notified of whether or not it has ‘passed’ the site visit.” If the inspecting officer is satisfied that no fraud has occurred the employer will likely not hear anything more about it, she said. If, however, there is a suspicion of fraud, employers could see a petition denial, a request for additional evidence, or, where a petition has already been approved, a notice of intent to revoke the approval. The case could also be referred to Immigration and Customs Enforcement for a criminal investigation.
Roy Maurer is an online editor/manager for SHRM.
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