Since the H1B filing season opened up in April 2009, cases were subject to greater scrutiny by USCIS. While we still have H1B visas available, the denial rate of filed cases is on the rise. I would say say that we have a 30% increase in RFE’s received this year. Recently, the USCIS started auditing employers and showing up unannounced at the work sites.
AILA’s Bob White and Mary Pivec, from AILA Verification and Documentation Liaison Committee provided an update on the recent audits.
The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.
USCIS created the FDNS in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS’ budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition.
FDNS has previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved.
So how does the site visit work?
Unlike many of the site visits with the L-1, EB-1-3 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.
FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. The instructions for the current version of the Form I-129 contain a section outlining the USCIS’ Compliance Review and Monitoring Methods. In these instructions, the USCIS states that its verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. The instructions also indicate that the USCIS will provide an opportunity to address any adverse or derogatory information that may result from a compliance review, verification, or site visit after a formal decision is made on the case or after the agency has initiated an adverse action, which may result in revocation or termination of an approval. If such information is not provided by USCIS when it issues the adverse action, FDNS has indicated that the employer may request a copy through the Freedom of Information Act (FOIA).
AILA recommend the following:
Clients should be advised to retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to interview by an FDNS officer, the designated official should retrieve this documentation and review it prior to meeting with the officer. Some clients may find it advantageous to stage a mock visit under the supervision and direction of counsel and subject to the attorney client privilege, so as to better prepare the designated official for possible interrogation regarding a random petition selected by counsel. Be careful to refrain from coaching the witness during the mock session and always have a firm representative present to memorialize the session in the event you are later accused of coaching.
If an FDNS officer requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the FDNS officer. The employer should not “guess” about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the FDNS officer to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the FDNS officer and there are no other company representatives available to answer the questions during the unannounced visit.
The USCIS Vermont Service Center has indicated to AILA that it has transferred approximately 20,000 cases to the FDNS as part of the H-1B assessment program. It is assumed that the USCIS California Service Center has also forwarded a comparable number of cases for review. This is an addition to the cases that are referred to the FDNS based on a standard profile worksheet, which is completed by the USCIS adjudicators as part of the regular H-1B adjudication process. Therefore, it appears that FDNS officers will be appearing at the offices of numerous H-1B employers (and their clients if the beneficiary is assigned to one of the employer’s clients) within the next few months to gather information about their compliance with the H-1B program.