Administrative site visits of U.S. employers in connection with H-1B petitions are becoming increasingly common as USCIS is trying to preserve the integrity of H-1B program in response to the USCIS H-1B Benefit Fraud Analysis report of September 2008. This article is presented by Attorney Ekaterina Powell from our office.
Administrative site visits are conducted as part of USCIS anti-fraud initiative. The main goal of a site visit is to verify the beneficiary’s H-1B employment with the petitioning entity. Employers are not provided any notice in advance of the site visit, which may be a problem for unprepared employers who do not know what to expect and how to prepare for the site visit.
In the recently released California Service Center Stakeholder Engagement Meeting on November 8, 2011, CSC points out that, in connection with an administrative site visit, petitioners should be prepared to answer any questions related to the terms and conditions of H-1B employment.
However, such broad latitude in the line of questioning given to USCIS inspectors creates certain problems for the employers who may misunderstand the questions and unintentionally give responses that may lead to H-1B petition’s revocation and adversely affect the company. The employer may request the presence of an attorney at the time of the site visit to avoid such confusion and misunderstandings.
So, what can an H-1B employer expect during a site visit?
Normally, administrative site inspections typically inspect the work location listed on the I-129 petition. In addition to speaking to a company representative (typically the signatory of the petition or the listed contact person) and/or the beneficiary, the inspector may also ask to inspect documents related to the petition and take photos of the worksite.
The inspector may question the employer’s representative on his/her knowledge of the beneficiary’s job duties, hours of work, salary, length of time the beneficiary was employed at the facility, locations of employment, etc.
The site inspector then may ask to speak to the beneficiary directly and will note any discrepancies in the employment details as described by the beneficiary and the employer’s representative.
The inspector may request to see the paystubs or other proof of wages paid to the employee and the employer’s otherwise compliance with the approved H-1B petition.
The main issues arise when the beneficiary cannot be found at the job location specified on the I-129. This situation raises several concerns on the part of USCIS: USCIS may not verify whether the beneficiary is still employed by the petitioner, whether the beneficiary is employed in a specialty occupation as stated on the H-1B petition, and whether the beneficiary is actually paid the required wage.
In such situations, USCIS may issue a Notice of Intent to Revoke an approved H-1B stating that the petitioner has violated the terms and conditions of employment and of an approved H-1B petition. Therefore, CSC advises petitioners who anticipate that the beneficiary will work off-site to provide a detailed itinerary with the H-1B petition with a list of employment work sites.
Another common issue raised in administrative site visits is payment of the required wage to the H-1B employee. Inquiries of the inspectors, however, may be confusing at times. For example, employers report that during the site visits the H-1B employees are asked whether they “paid for the H-1B.” CSC stated that questions regarding payment of fees are asked by site inspectors and deductions from the beneficiary salary to pay fees assignable to the employer can be considered a red flag.
However, the form of the question itself, i.e. whether the employee paid for the H-1B may be misleading. Without a further clarification of what fees exactly are implied, the employer may receive a Notice of Intent to Revoke the approved H-1B even if the employer acted in full compliance with the H-1B requirements and made only authorized deductions from the H-1B employee’s wages.
Responding to the NIR and explaining that the employer is actually in compliance with the H-1B rules is very time-consuming and costly. Therefore, before USCIS implements further training of its site inspectors, employers should be proactive and engage the services of a competent attorney at the time of a site visit to avoid unnecessary expenses in the future.
If there are any inconsistencies between the information gathered through a site visit and the information entered on I-129, USCIS may issue a Notice of Intent to Revoke (NIR) the approved H-1B petition. Due to delays in administrative processes, the NIR may be issued 6 or more months after the actual site visit.
Often times, NIR is a surprise for the H-1B employer who was sure that all the answers given as part of the site visit were in line with the H-1B petition.
In addition, by the time USCIS issues NIR, many employers no longer remember the questions or the answers given during the site visit, and it becomes hard to ascertain the extent of the issues that need to be addressed and to prepare the appropriate responses to NIR.
Therefore, we recommend our clients who had administrative site visits to outline all the questions the inspector asked and all the answers given by the employer immediately after the visit to make things easier in the future.
Failure to respond to NIR or inability to rebut USCIS allegations in NIR may have significant negative impact on the company. USCIS may revoke the approved H-1B petition and may even report serious wage and hour violations or other violations of H-1B requirements to other government agencies, such as Department of Labor, for example. The repercussions of H-1B violations can adversely affect the ability of the employer to hire future H-1B employees and may prevent business growth.
Therefore, all H-1B employers are reminded to set up an effective H-1B compliance system, perform periodic internal audits of the H-1B files and Public Access Files, follow proper procedures in case of any material changes in employment, employee relocation to another worksite, or employee termination in order to be prepared in case of an audit or a site visit.
If you are an H-1B employer and you do not fully understand your obligations as per the H-1B program or if you need help in setting up an effective H-1B compliance system, contact our office.