FDNS Site Visit Program: Coming Soon to an L-1 Employer Near You

In the February/March 2014 issue of the Immigration eAuthority, we reported on the expansion by U.S. Citizenship and Immigration Services (USCIS) of site visits to certain L-1 employers under the Administrative Site Visit and Verification Program. As confirmed during a public stakeholder teleconference hosted by USCIS on April 24, 2014, the agency’s Fraud Detection and National Security (FDNS) unit will soon begin conducting randomly-selected compliance visits in connection with extension of status petitions filed with USCIS for L-1A managers and executives. While FDNS plans to expand the site visit program to other L-1 petitions in the future, the date for full-scale implementation of L-1 site visits is not yet certain. USCIS already conducts administrative site visits in connection with approximately 15,000 H-1B petitions each year, but the forthcoming expansion of the program to include L-1 petitions has raised concerns in the business community.

L-1 petitions will be selected at random for an unannounced site visit at the worksite address that is listed on the petition and USCIS will not target individual companies or industries. The visits will be conducted exclusively by federal immigration officers (the use of contractors has been phased out), and FDNS officers are required to identify themselves as government officials performing an immigration site visit. The officer must present credentials and provide a business card to the interviewee that lists the District Director with jurisdiction. Any concerns about the visit should be escalated to the director.

The FDNS officer conducting the review will be trained to initially ask a standard set of 10 questions, which should be answerable based on information submitted in the L-1 petition. Although USCIS has not yet released these questions, some factors that will be evaluated include:

• whether the site inspector was able to interview the beneficiary;
• whether the signatory of the petition or HR manager had knowledge of the originally-filed petition;
• whether the beneficiary was working for the organization cited in the petition (with the understanding that it can be an affiliate company); and
• whether the beneficiary is performing the job duties and is being paid the salary indicated in the petition.

As with all site visits, USCIS noted that participation by the petitioner or beneficiary is completely voluntary and that they are entitled to have an attorney present in person or by phone. If either the petitioner or beneficiary indicates an unwillingness to proceed at any point during the site visit, the officer will terminate the visit and complete the site visit report. In addition to the on-site interview of the petitioner and beneficiary, the FDNS officer may rely on other methods to verify petition legitimacy, including a review of public records, contact with the petitioner or beneficiary via phone or email, and internet research. Employers should be prepared to submit and/or comment on any information submitted with the original petition. Based on the information gathered, FDNS will ultimately make a finding of “verified” or “not verified” in the site visit report.

The officer is not authorized to re-adjudicate a petition, make a finding of fraud based on the site visit itself, or accept a withdrawal of the petition. Furthermore, a finding of “not verified” does not automatically result in petition revocation, but the data will be forwarded to the USCIS Service Center, which can, in turn, issue a Notice of Intent to Revoke (NOIR). In such a situation, the petitioner will be provided with an opportunity to respond.

Given the fundamental differences between the L-1 and H-1B regulations, businesses remain concerned that difficulties will arise with the newly-expanded FDNS site visit program. For example, unlike H-1B petitions, L-1s do not require a U.S. Department of Labor-certified Labor Condition Application (LCA) that obliges an employer to make certain attestations about the terms and conditions of employment. Therefore, unless there is a change in the capacity of employment of an L-1 beneficiary (e.g., from a managerial position to a specialized knowledge role) or some other modification that impacts qualification for an L-1 visa, such as a change in relationship between the international companies transferring the beneficiary, there is no regulatory requirement for an employer to amend a petition. The consequence may be that USCIS is not aware of certain changes in employment. For instance, since a change in a beneficiary’s worksite does not require an amendment, FDNS officers may show up at an address where the L-1 beneficiary is no longer located.

In response to such concerns and questions fielded during the teleconference, USCIS indicated that it is aware of the nuances between the different visa categories and FDNS officers will be trained accordingly. With no available method for tracking beneficiaries of L-1 petitions who may have changed work locations, assumed different (yet still qualifying) job duties, or left the country altogether, it remains to be seen whether site visit procedures can adequately address these concerns. Moreover, while USCIS has indicated that L-1 site visit procedures will account for the distinctive features of the L-1 visa, the agency, nonetheless, stated that there is an expectation that the petitioner and beneficiary will be available for interviews.

During a recent dialogue with USCIS, hosted by the U.S. Chamber of Commerce on May 1, 2014 in connection with the L-1 site visit program, the business community further expressed concerns regarding the scope of site visits, the selection process, and privacy issues. These concerns are summarized below, together with USCIS’ responses.

1. What is the scope of questions asked by FDNS officers and what processes are used in scheduling site visits and following up?

The business community expressed concern over the lack of consistency in the types of questions asked during site visits because questions are not always limited to verifying the validity of information submitted with the petition, compliance with the terms and conditions of the beneficiary’s status, and the legitimacy of the petitioning employer’s existence and operations. Instead, employers have found the FDNS officer’s questions to be adjudicatory in nature. In response, USCIS again confirmed that officers are directed to ask a consistent, standardized set of questions and necessary follow-up questions, and will review the data submitted with the petition. If the scope of the questions exceeds verifying the facts in the petition and the visa holder’s status, USCIS encourages petitioners to express their concerns, and indicated that it is willing to formally publish the standard set of questions.

USCIS expects to have approximately 70 site inspectors, with specific training on L-1s, working in connection with this program. While site inspectors are expected to complete the verification process, USCIS noted that petitioners will have more opportunities than just the site visit to provide the requested information. If a site inspection is not completed for any reason, for example, or if the petitioner chooses to end the site visit because the manager is not on site at the time, the FDNS officer can follow up with the company via email or fax. Ending the site visit does not result in an automatic “not verified” finding. USCIS also assured the business community that it will address concerns regarding the professionalism, demeanor, and level of training of the government site inspectors by employing a unified set of training standards and consistent processes for site visits, and stated that any issues should be reported to USCIS.

Given that FDNS site inspections are typically conducted without notice, businesses also expressed frustration at the inability to adequately respond to surprise site visits because many companies centralize their HR/Immigration functions. Despite the fact that the company representative may not be immediately available at the worksite location, the agency’s current plan is to continue with unannounced inspections.

2. What is the selection process for site visits and, in particular, why are multiple site visits experienced by some employers?

Business representatives expressed doubt regarding the random nature of the selection process in light of the large volume and repetitive nature of site visits being conducted at certain companies, whether at one location or multiple locations. Some employers with a large number of petitions or those companies that place employees at third-party client locations seem to be more frequently targeted. Expressing frustration over the disruptive nature of numerous site visits, representatives of the business community suggested that the process be modified so that a single company is not repetitively selected if previous site visits have not indicated non-compliance, or that the burden on companies be reduced by taking advantage of technology as an alternative to physical worksite inspections.

USCIS stated that, due to the nature of random selection, petitioners with a high number of filings will be subject to a greater number of site visits, but denied targeting particular corporations and reiterated that this is not a fraud detection program. The agency is, however, prepared to consider allowing telephonic verification for petitioners that have a high record of compliance. This practice will, in turn, lighten the workload and allow FDNS to expand the program to reach a greater number of companies to ensure technical compliance, rather than conduct repetitive site visits at a single company. However, a timeframe for this proposal was not provided.

3. What safeguards are in place to protect both the employer’s private information and the employee’s identity during the site visit process?

In response to commercial privacy and personal identity concerns, USCIS representatives emphasized that the agency takes its responsibility to safeguard privacy very seriously, reiterating that immigration officers must provide business cards and credentials to clearly identify themselves as representatives of USCIS. The agency also noted that most of the documents that site inspectors ask to review should be readily available because they are associated with the original petition. Concerns regarding employee privacy should be conveyed to the site inspector whose only function, according to USCIS, is to record facts regarding the petitioner and beneficiary, including his or her role and duties. USCIS understands employers’ security concerns regarding proprietary information and the taking of photographs on business premises, and is willing to ensure that officers receive consistent training and have a standard operating procedure to determine the most appropriate environment to take photographs as necessary evidence of the petitioner’s existence.

An additional concern is that visa beneficiaries frequently work at company locations where there are no HR personnel. Beneficiaries who are interviewed as part of the site inspection are often intimidated by the process and may not understand corporate privacy issues without the guidance of trained HR personnel. The unintended consequence may be that the beneficiary provides unnecessary information that is outside the scope of the petition, leading to the disclosure of proprietary information. Likewise, companies have an obligation to protect their employees’ private information and officers often request documents (such as paystubs) to verify petition information that, if leaked, can lead to identity theft. Responding to these concerns, USCIS representatives noted that they are aware that nonimmigrant visa holders feel more vulnerable than legal permanent residents or citizens and emphasized that they approach the program with this in mind. Regarding employees who work at other company locations or client sites where no HR personnel are available, USCIS expressed its commitment to having further regularized dialogue with the business community to enhance its engagement methods with employers.

What Should L-1 Employers Do to Prepare for the Expansion of USCIS’ Worksite Inspection Program?

The overarching impression following these recent exchanges with USCIS is that many of the logistics concerning the L-1 site visit program are still undetermined. It also remains to be seen whether USCIS will extend site visits to all L-1 petitions. The complexities and particular nuances inherent in the L-1 visa program pose specific issues for the site visit process. Nevertheless, all L-1 employers should anticipate and be prepared for the possibility of surprise L-1 compliance site inspections, know what to expect, and take additional measures to demonstrate program compliance. It is critical to review immigration compliance policies and practices, including ensuring that internal protocols and best practices for site visits are in place and that the appropriate internal staff is trained to ensure a systematic and efficient response to reasonable FDNS requests regarding L-1 filings and their contents. In addition, companies that are the subject of an FDNS site inspection are advised to immediately contact experienced legal counsel. As part of our comprehensive immigration compliance services, Ogletree Deakins can assist employers in implementing proper procedures to avoid liability.