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.
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.]
FDNS site visits can be used to verify information about an employer-sponsored visa application, such as:
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:
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.
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.
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.
If selected for a site visit, employers and employees can anticipate the following from the FDNS officer:
An FDNS officer will likely ask the employer/company representative questions concerning the following topics:
Both the company representative and any foreign national employees should also be prepared to answer questions regarding the foreign national, including:
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.
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:
Company representatives should take detailed notes on the site visit including:
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.
©All Rights Reserved. March, 2021. DailyDACTM, LLC d/b/a/ Financial PoiseTM
Fiona McEntee is the Founding & Managing Attorney of McEntee Law Group. Fiona first moved to Chicago from Dublin, Ireland, back in 2002, as an international exchange student at DePaul University’s College of Law. Having fallen in love with Chicago, she returned to study at Chicago-Kent College of Law, where she received her Juris Doctor…
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