Department of Homeland Security H-1B Employer Site Visit FAQs
Since the summer of 2009, the Department of Homeland Security (DHS) through the U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has significantly increased the number of investigations, or “site visits,” of employers who sponsor foreign nationals for H-1B nonimmigrant status. We believe that most companies that have recently filed an H-1B petition are likely to be subject to a visit. Investigators typically show up unannounced at the employer’s worksite and ask to speak with the person who signs immigration documents. The Investigator may also ask to speak with one or more of the sponsored H-1B workers. The purpose of these investigations is to confirm that the information provided on the employer’s petition is consistent with the foreign national’s terms of employment and job duties at the company. We are providing these FAQs to prepare our clients for DHS site visits.
Who is conducting the site visits?
The H-1B site visits are being conducted by the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS). Note that most of the agents conducting the site visits are private investigators contracted by the DHS, and not government employees.
Why are the site visits being conducted?
The investigations are being conduct as a part of the USCIS mission to detect and deter immigration fraud, and are financed by the $500 “Antifraud Fee” that is required for all new H-1B and L-1 petitions. These visits are not triggered by “red flags” in the petition filings. Most H-1B employers will likely be subject to a visit.
Which employers are being investigated?
Based on our research, most employer who have recently sponsored H-1B employers are being investigated, or will be investigated by a DHS agent.
Will the DHS provide the employer with forewarning of the site visit?
These site visits are generally unannounced.
Where will the site visit take place?
The investigator will come to either the employer’s principal address, or the H-1B worker’s work location.
Who will the investigator ask to speak with?
The investigator will ask to speak with the company representative who signed the H-1B petition, and usually one or more of the sponsored H-1B employees. If the person who signed the petition is not available, they will ask to speak with a human resources representative.
May an employer request that its immigration counsel be present?
Yes. The employer is entitled to representation by its immigration counsel. However, the DHS has indicated that it will not reschedule an appointment in order for the attorney to be present. We encourage you to contact our office by phone if you are uncomfortable with, or unsure how to answer any of the questions asked by the investigator.
How can employers verify that an investigator is an agent of DHS?
The investigator should present a DHS issued identification and a business card. Please contact our office if you would like us to verify a DHS officer’s identity through the FDNS office.
What questions will the investigator ask?
Some of the questions that investigators typically ask include:
- What is the total number of employees at the company?
- How long has the company been in business?
- How many foreign nationals who are currently working at the employer have been sponsored by the company?
- How many employees have been sponsored by the company for permanent residency (green cards)?
- What are the job duties, work location, work hours and salary of the H-1B worker?
- Is the H-1B worker assigned to work at clients’ worksites or other locations ?
What documentation will the investigator ask to see?
The investigator may ask to see financial reports, payroll records, incorporation paperwork or other information to verify the company’s existence, income and payroll.
Will the investigator ask to see I-9 employment verification records?
To our knowledge, FDNS investigators have not asked to see I-9 records during H-1B worksite visits. Employment verification issues are generally not handled by the FDNS office handling site visits. If the investigator does ask to see the I-9s, please contact our office.
Will the investigator ask to see Labor Condition Application Public Access Files?
Investigators have not been asking to see the LCA Public Access File during these H-1B worksite visits. However, these files should be provided to the investigator if he or she asks to see them.
Will the investigator ask to tour the worksite?
In some cases, the investigator will ask to tour the worksite and may ask to take photos.
May the employer decline to answer questions, or not allow the investigator to view its corporate and financial documents, or tour the premises?
Yes. However, we believe that it is prudent to be as cooperative as possible during these routine site visits. If there is confidential information that is not related to payroll or immigration, or parts of your worksite that you normally do not allow visitors to see, we recommend telling the investigator that company policy precludes you from providing the information, or showing that part of the worksite. Please contact our office if the investigator insists on access to the information or visiting a restricted part of the worksite.
May the employer require the DHS to obtain a subpoena prior to conducting the investigation?
Although we believe that employers may require the DHS to obtain a subpoena prior to conducting the investigation, we feel that in most cases this should not be unnecessary if the investigator is only asking to see immigration-related documentation, basic financial or payroll records, or information that is available to the public. As noted above, if the investigator insists on seeing information that is not immigration related and highly classified, please contact our office. Note that the DHS has taken the position its investigators do not need a subpoena to conduct these investigation and this has yet to be tested in court.
How should H-1B employers prepare for DHS site visits?
We recommend that employers take the following steps to prepare for DHS site visits:
- Don’t panic. There should be no reason to be concerned about a site visit so long as the information provided to the investigator is consistent with the information provided in the immigration filings.
- Review the current job duties, job title, work location and salary of H-1B workers or other sponsored employees against the most recent immigration filings to ensure that there are no inconsistencies. If there have been significant changes in the job duties, or salary or if there has been a change in job location, please contact our office as soon as possible to determine whether an amended petition needs to be filed.
- Brief the signer(s) of immigration documents on the possibility of a site visit, and give him or her a copy of these FAQs.
- Assign a backup Human Resources representative in case the signer of immigration documents is unavailable, and give the backup person a copy of these FAQs as well.
- Notify the company’s receptionist(s) that a DHS investigator may come to the company unannounced. Instruct the receptionist(s) to refer the investigator the designated person, or his or her backup, when the investigator arrives. We also recommend instructing the receptionist not to allow the investigator to speak with the sponsored employee, or view confidential information until he or she has spoken with the designated person.
- Notify your H-1B workers that a DHS investigator may come to the worksite and ask to speak with them, and that this is a routine procedure and does not mean that there any issues with their status.
- Ensure that copies of immigration related filings are readily available in the case of a site visit.
- Contact our office if you have any questions.