Have a Plan for Unannounced H-1B, L-1 Audits

USCIS expected to match this year’s number of site visits in 2020

Roy Maurer By Roy Maurer November 14, 2019
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​HR and global mobility professionals should be ready to respond when inspecting officers show up to review H-1B and L-1 visa programs for compliance.

The site visits conducted by the Fraud Detection and National Security (FDNS) office within United States Citizenship and Immigration Services are often unannounced and can result in confusion, panic and fear at the worksite.

"The No. 1 piece of advice for employers is to ensure a written plan is in place," said Hiba Anver, senior managing attorney at Erickson Immigration Group, speaking at the recent Society for Human Resource Management Global Mobility and Immigration Symposium in Washington, D.C. Employers need to tell staff what the plan is and make sure they are ready to enact it when the time comes.

"Oftentimes the person who is first to encounter the officer conducting the visit is far removed from immigration matters, and it's not uncommon to have a communications gap between various departments," she said.

Anver recommended education and training on what to expect during an audit, even for people in other departments who don't necessarily work on immigration day-to-day. "We certainly also want employers to loop in their immigration counsel to assist with these incidents," she said.

Peter Schiron, assistant general counsel at Deloitte in New York City, added that it's a good idea to inform foreign national employees about the possibility of an inspection and remind them that the employer supports them to alleviate any fear they may have. He also advised large organizations to run FDNS visits through a centrally managed system. "You want site visits to be filtered through one source," he said.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

FDNS Associate Director Matthew Emrich noted that his office conducted 12,542 worksite inspections in fiscal year 2019, which is about on par with previous years. About 4,000 of the visits were random inspections, and 8,500 were targeted. FDNS intends to conduct investigations in a similar way in 2020.

The random reviews are primarily focused on H-1B and L-1 workers, whereas the targeted visits, ramped up following President Donald Trump's April 2017 "Buy American and Hire American" executive order, can encompass a variety of visa categories for inspection.

"The intention of the targeted visits is to focus resources where fraud and abuse is likely occurring," Emrich said. That includes looking at H-1B-dependent employers and companies that petition for H-1B workers to work offsite at a third-party location.

FDNS officers are there to determine whether the underlying visa petition filing was valid and whether the visa-holding employee is working under conditions consistent with that filing. Officers conduct a physical inspection; interview employees about their job duties, work hours and location, and salary; and request documents to verify the accuracy of the information in filed petitions, such as the employer-employee relationship.

Because FDNS officers are not adjudicators, they do not make decisions on petitions or applications for immigration benefits. It's important to know that FDNS is also not an enforcement agency and the worksite visits are not enforcement raids. "Cooperation with the visit is voluntary. However, if information cannot be verified, then that is taken into account," Emrich said. An FDNS officer's report is reviewed for any indicators of fraud or noncompliance, and the case may be referred to Immigration and Customs Enforcement for criminal investigation.

"People have asked me, 'If the site visits are voluntary, then why don't we just shut the door on them?' " Schiron said. "That would not be in employers' best interest. At the end of the day, FDNS is authorized to carry out their mission and if it's disruptive to business, that's too bad."

Schiron warned of fraudsters who take advantage of foreign national workers by calling them up and impersonating immigration officers who ask them to wire money in order not to be deported.

"FDNS will never call and ask for money over the phone," Emrich said. "We will never make a demand that has to be done immediately. If it seems weird, contact our local office. We've taken swift action when we've gotten tips like that in the past."

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