I have heard the USCIS will conduct site visits, so how should I respond?
Abstract: Many of our H-1B and L-1 cases have been approved, and the success with these cases has proved our hard works to be worthwhile. But do not assume right away that all things will go well because a “site visit” from USCIS is still awaiting all the applicants. How will the “site visit” be conducted and which aspects will be evaluated? What are the things that we need to pay attention to? What are the possible outcomes after the “site visit”? In this article, we will give you a detailed explanation.
Starting in 2009, USCIS had launched the Administrative Site Visit and Verification Program to learn about specific visa categories such as H-1B, L-1, and EB-5 to ensure that employers and foreign employees comply with the conditions submitted when they apply, and to prevent fraud in specific visa categories. In recent years, USCIS has implemented more site visits targeting petitions for H-1B and L-1 while widening the scope of the inspection. Many enterprises did not meet the requirement of field inspection, which had led to the subsequent civil and even criminal investigations. At the same time, some visa holders also face the risk of being deported because of visa violations.
For example, company A submitted an H-1B petition for Ming stating the applied position was an accountant. However, after Ming’s H-1B Visa was approved, Ming was engaging in the job duties for market research. This means that company A and Ming did not comply with the agreed conditions when applying for H-1B, which may lead to suspicion of visa fraud.
How do you effectively respond to site visits? In the following article, we will summarize the frequent occurrence issues during site visits to boost your chance of a successful passing!
1. Which agency will conduct a site visit?
A site visit will be taken up by the Fraud Detection and National Security Directorate (FDNS) under the USCIS. After completing the site visit, the FDNS officer will issue a compliance review report to the USCIS. The final determination on whether if there is fraud or illegal behavior from the inspected employer will be decided by USCIS, in which FDNS also has the right to request the USCIS to conduct a criminal investigation on the suspected party.
2. Will USCIS give advance notice for the site visit?
Most of the site visits will not receive advance notice. The FDNS officers will show up suddenly to conduct the inspection. In the past, only a few employers will be notified of the visit date and time by phone or mail.
3. Does a site visit indicates that the employer is on the USCIS’s blacklist?
A site visit is only a routine administrative procedure by the FDNS. Therefore, the employers that have been selected for inspection do not need to panic, because the inspection does not indicate that the company has problems. If the employers submit several visa petitions, the site visit will likely take place several times, because each site visit will only target one H-1B or L-1 Visa holder. The site visit will usually last from 15 minutes to an hour each time.
4. What will be inspected during a site visit?
First of all, the FDNS officer will verify whether the petition letter, forms, and other supporting documents from the H-1B or L-1 petition correspond with the petitioner company and confirm its actual existence.
The actual existence includes consistency in company name and address, appropriate work location. In this process, FDNS is going to obtain the consent of the inspected company to conduct an internal inspection as well as to gather information from the nearby companies in verifying the accuracy of the company address and business operation. At the same time, the FDNS officer, when necessary, will take pictures or videos for record. It is worth noting that the FDNS officer will also review company reports or records that are made public. Therefore, it is important to always keep the most updated public reports or records.
Secondly, the officer will also ask the employees questions related to their work, which we will discuss in detail in question 7 below.
5. Will the officers directly speak to the CEO?
Under normal circumstances, the FDNS officers will speak with the signatory who represents the company on the H-1B or L-1 petition documents. In the situation that the signatory is absent, the representative that has been authorized by the company can also speak with the FDNS officers. In terms of content, FDNS officers will usually ask questions concerning the personnel that holds the H-1B or L-1 Visa.
The personnel situation includes the organizational structure of the company, employee positions, job responsibilities, time of employment, place of employment, actual working hours, and actual wages, etc. In this stage, the company should prepare the corresponding documents in proving the stated facts. For example, to prove the actual employment of a certain employee, the company needs to provide the corresponding paystubs, W-2, and other related documents. If the employee is no longer with the company, the FDNS officer will further request the company to provide proof of resignation or termination to prove the end of the employment.
6. Will the officers speak with my colleagues?
The answer is yes. The FDNS officers may speak with the visa holder’s direct supervisors or colleagues in the same position to learn about the actual job responsibilities of the visa holder to determine whether if the job duties correspond to the ones in the petition. Therefore, when there are changes in your position, you must immediately submit the amendment application to avoid the inconsistency that may lead to suspected fraud by the FDNS officers.
7. Will the officers speak directly to the employees?
The answer is yes. The FDNS officers will usually speak to the H-1B or L-1 visa holders directly concerning their employment.
Employment covers the scope of the employment period, salary, and other related content. The FDNS officer needs to verify that the H-1B or L-1 visa holder’s current work condition is consistent with the job duties stated in the petition. In this process, the H-1B or L-1 visa holders have the responsibility to firmly grasp his/her designated job responsibilities which include the position title, term of employment (full-time/part-time), job responsibilities, wages, and related information, and should not provide uncertain answers to avoid questions by the FDNS officers. At the same time, the employees should have their work email and workspace to evidence the legitimacy of their employment.
8. What if the officers ask me questions that I don’t have the answers to?
First of all, you have to sort out whether if the question asked by the FDNS officer is related to the content submitted in the petition. If it is, but you forgot or can’t recall correctly, even then, you should not be ambiguous in your answer. You can ask the HR if he/she is present to assist you in your answers to the FDNS officers. However, if the question is unrelated to content submitted in the petition, or it might take some time to conduct internal research to obtain the correct answers, in a situation as such, you can respectfully request an extension of time to respond to the questions. Also, you can opt for ways of emailing or calling the FDNS officers with your responses. Overall, it’s important to note that you’d rather stay silent instead of giving out any uncertain responses.
9. What should be expected after the site visit?
After the site visit, the FDNS officers will issue a compliance review report and conclude whether a further investigation on the company is needed.
In some cases, the FDNS officers will also ask the employers to provide additional materials to complete their compliance review report upon completing the site visit. Generally, the inspection results will not be officially notified, but if the FDNS conclude there to be a suspicion of fraud and based on the USCIS’s final adjudication, this may lead to the denial of the employer’s subsequent petition, RFE, or even worse- revocation of the approved petition. In correspondence, if the employer successfully passed the site visit, it will gain credibility with the USCIS and provide the employer with an advantageous edge for future petitions.
10. After understanding the methods and content of the site visit, are there other details that the employers or employees should pay attention to?
Ask for identification verifying their identities as FDNS officers. Before the inspection, the FDNS officers should provide proper identification and authorization documents from the USCIS in which they are obligated to show the employers when requested. The employers should also verify the two documents by initiating the request.
Require the attorney to be present. Before the visit starts, the employer has the right to inform FDNS officers to wait for the attorney’s arrival and when needed, to extend the waiting time until the attorney’s arrival to begin the process. Also, the attorney can advise and guide the process throughout the whole duration of the visit via phone. Therefore, it is important to hire an experienced attorney who is well versed in legal risks.
The site visit procedure can be terminated at any time. Although site visit is part of the USCIS administrative procedure, however, the procedure is unlike the general law enforcement process and it can only proceed with the consent of both the employers and employees. If during the procedure the employers or employees express dissent or decide to opt-out of the process, the FDNS officer must terminate the procedure. At the same time, please note that the FDNS officer can still use the already obtained information to complete the final compliance review report and record the part where it was last left off, and submit the report to USCIS. Therefore, to prevent potential issues or concerns raised by USCIS during a site visit, we sincerely advise both the employers and employees to have a qualified attorney present and to comply with the requirements of the site visit upon verifying the FDNS officer’s identity.
We hope this article can help you to successfully respond to the USCIS’s site visit!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.