What Employers of Foreign National Workers Should Know to Prepare for a USCIS Site Visit

Answering Common Questions About USCIS Site Visits

It is nearly impossible to imagine the modern U.S. workplace without foreign nationals. Companies across the nation, in a wide variety of industries, rely on their specialized knowledge and invaluable professional experience to remain competitive in the global market. According to immigration statistics, in 2019, immigrants constituted 17% (28.6 million) of the civilian labor force (166.3 million).  Despite the value of their expertise and experience, over the past few years, U.S. immigration policy changes had dramatically increased the level of scrutiny on foreign national employees and their US employers.

The U.S. Citizenship and Immigration Services (USCIS) manages the anti-fraud and abuse program for these company-sponsored foreign national employees. Specifically, the Fraud Detection and National Security (FDNS) unit within the USCIS is charged with conducting employer site visits for those employees and their corresponding employers.

The Future of USCIS Site Visits

Since 2009, the USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B visa program. Under the Trump Administration’s tenure, we saw a concerted effort to conduct more site visits than ever before starting with the signing of an executive order in January 2017, to specifically increase targeted site visits to combat alleged fraud and abuse involving visas for H-1B professional workers and L-1A/B international company transferees.

While it remains to be seen how the Biden Administration will approach the issue of site visits, it is prudent for employers with sponsored foreign national employees to remember that both the company and the employees remain subject to random worksite inspections from the USCIS for the duration of a foreign national’s employment.

Additionally, there are some steps employers can take in advance of such site visits to ensure that they are as prepared as possible. We have outlined answers to some Frequently Asked Questions to assist employers as they prepare for a potential USCIS site visit with an FDNS officer.

[Editor’s Note: Learn more about immigration law for business in our webinar Immigration Law 101. You can listen to a preview of the webinar in the clip below.]

USCIS Site Visit FAQ

1. What is the Purpose of Employer Site Visits?

FDNS site visits can be used to verify information about an employer-sponsored visa application, such as:

• Specifics on the sponsoring employer and the sponsored employee;
• The validity of the information on the foreign national’s visa application; and
• The employer’s and the foreign national’s compliance with the terms of the approved employment.

2. How are Employers Selected for Employer Site Visits?

In the past, USCIS had stated that it conducts random compliance visits in addition to for-cause visits based on previously detected fraud.

Per the aforementioned Trump executive order, the USCIS implemented plans to increase targeted site visits to focus on cases where:

• The employer’s business information cannot be verified through commercially available data;
• Employers are considered H-1B dependent, meaning they have a high ratio of H-1B workers compared to US workers; and
• Employers petition for workers to work offsite at third-party or client locations.

Notwithstanding the three scenarios outlined above, it is important to note that any employer can be selected for a random site employer visit per USCIS policy.

3. How are Site Visits Conducted?

Site visits may be conducted by phone, email, or in-person, and often happen without any prior notification. Typically, a FDNS officer shows up unannounced at an employer’s place of business. Site visits can last one hour or longer depending on the nature of the visit. Companies employing numerous foreign national employees should anticipate longer site visits or additional site visits, sometimes as many as one site visit per sponsored foreign national.

4. Can an Immigration Attorney be Present During the Site Visit?

In theory, your immigration attorney can be present during the site visit, however, the lack of notification of the visit typically prevents this from happening. If possible, employers should contact their attorney to be present in person throughout the site visit and, if this is not possible, employers should inform the FDNS officer that their immigration attorney can be present by phone throughout the visit.

5. What Should Employers Expect from an FDNS Site Visit?

If selected for a site visit, employers and employees can anticipate the following from the FDNS officer:

• The officer will want to speak with the human resource manager/company representative. This is usually the signatory on any visa/immigration forms. If this person has since left the employer, a substitute representative should be available to speak to the officer.
• The officer will look to speak to the foreign national and their direct supervisor or manager.
• The officer will tour and may want to photograph the company premises.
• The officer will request payroll stubs for the foreign worker, W-2 forms and organizational charts related to the U.S. office and any foreign office, as relevant.
• The officer may also request payroll stubs for any employees supervised by the foreign national employee.
• The officer may look to review the Public Access File for any worker in H-1B status.

6. What Questions Will be Asked During a Site Visit?

An FDNS officer will likely ask the employer/company representative questions concerning the following topics:

• Company business and annual revenue
• Number of employees on location and company-wide
• Number of foreign nationals sponsored by the company (based on non-immigrant visas & employment-based green card applications)

Both the company representative and any foreign national employees should also be prepared to answer questions regarding the foreign national, including:

• Job title
• Responsibilities
• Salary/wages
• Work schedule
• Comparable positions
• Employment history
• Residence
• Family members in the US

7. What Do Employers Need to Know About USCIS Site Visits & Foreign Workers at “Third-Party” Locations?

Employers with foreign nationals who work at a third-party location or a company vendor should notify management at the relevant worksite of the possibility of an FDNS site visit when a foreign national begins work. The third-party may also want to designate and train a company representative to interact with the officer.

Any site visit to a third-party location will likely focus on ensuring there is a bona fide employer/employee relationship between the sponsoring employer and the foreign national worker despite the third-party placement. All parties should be prepared to show statements of work and itineraries, and be able to discuss the type and level of supervision and control exerted by the sponsoring employer.

8. How Can Employers Plan for FDNS Employer Site Visits?

To ensure that the FDNS site visit minimizes daily business disruptions, companies that employ foreign nationals should follow the steps below to prepare for FDNS employer site visits:

• Speak with your/an immigration attorney to obtain their emergency contact information.
• Ask your immigration attorney to conduct a company-wide training to prepare for a site visit.
• Create specific company procedures for USCIS site visits.
• Designate and train a company representative to speak and accompany the FDNS officer for the duration of any site visit.
• Designate an alternate company representative should the main company representative be absent on the day of a site visit.
• Ensure the Public Access File for every H-1B worker is prepared correctly and available, should the officer request to see it. (Given all the workplace transitions and remote work due to the COVID pandemic, we would highly recommend that employers proactively audit all their Public Access Files to ensure compliance.)
• Inform all staff of the possibility of a site visit to minimize any confusion or panic.
• Inform foreign nationals and their managers about what to expect from a site visit.

Company representatives should take detailed notes on the site visit including:

• FDNS officer’s name, USCIS credentials and contact information
• List of individuals the FDNS officer speaks to including name and title
• Questions asked by the FDNS officer and answers given
• List of documents requested and provided to the officer

While the timing of an FDNS site visit might catch employers and employees off guard, it will help to take these proactive measures before any potential visits. Setting policies and procedures in advance can help site visits go more smoothly and will put both employers and employees at ease.

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[Editor’s Note: To learn more about this and related topics, you may want to attend the following webinar: Labor & Employment Law in an Hour. This is an updated version of an article originally published on October 18, 2018.]

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