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CIS Fraud Detection Unit Conducts Surprise H-1B Investigations

Sep 30, 2009

USCIS’ Fraud Detection Unit Conducting Surprise Investigations of H-1B Employers

The U.S. Citizenship and Immigration Services (USCIS) Fraud Detection and National Security (FDNS) Unit, which has conducted site visits to employers who sponsor foreign nationals for years, has recently stepped-up unannounced site visits.  FDNS reportedly has visited several of our employer clients recently, particularly those sponsoring H-1B (professional worker) and R-1 (religious worker) employees.

Pre-approval inspections are now mandated for R-1 cases, but most H-1B inspections are conducted post-approval.  In H-1B cases, FDNS requests documentary proof of the H-1B employee’s job title, duty description, and current annual salary.  The implication is that FDNS will cite an employer, in the event the H-1B employee is not working in the approved position or is not being paid the salary promised in the H-1B petition.

The FDNS was created by USCIS in 2004 “to enhance the integrity of the immigration systems and to identify persons who pose a threat to national security or public safety.”  The FDNS is a “developing operation” and reports that in early 2009 it reached a workforce of approximately 650 officers throughout the U.S. and in selected offices overseas.  FDNS officers are stationed throughout the country in every USCIS center, district and asylum office and work in tandem with Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to tackle immigration fraud.  The FDNS also works with key government agencies to combat terrorism and other national security and public safety threats internationally.

During site visits by an FDNS officer, employers must field questions on a range of topics from general questions about the business, its number of employees and revenues; to questions about the business’ immigration policies and the number of nonimmigrant and immigrant petitions it files for employees.  Company representatives, including its General Counsel and Human Resources Manager may also be questioned about specific petitions and the sponsored foreign national’s background, credentials and experience and be asked to provide documentation, including organization charts, wage reports, W-2s and Forms I-9.  In addition, the foreign national’s manager and foreign national may be questioned by the FDNS.  FDNS officers may wish to tour the company premises and foreign nationals’ work areas and document the site visit with photographs.  The depth of investigations varies widely from employer to employer; some may be asked one or two questions, and others may be looked into more thoroughly.

Given the current climate of increased fraud investigations, employers, foreign national employees and their immigration attorneys must remain as vigilant as ever in documenting immigration cases and compliance requirements with the USCIS and U.S. Department of Labor.  Site visits are random and do not necessarily indicate that USCIS suspects the employer has committed fraud.  Because site visits are unexpected, immigration counsel is often not present.  Immigration counsel must be notified immediately of a site visit to work together with employers and foreign nationals in complying with FDNS requests.  It may be reasonable for employers to request additional time to respond to FDNS requests for specific documents that must be generated or obtained from immigration counsel.  Overall, it is important for employers to be prepared, remain composed and respond truthfully to FDNS investigations.

The need for foreign labor remains strong, and thus site visits are another hoop many employers simply must jump through in their efforts to run a business.  Employers and foreign nationals must become accustomed to site visits, as fraud investigations are likely to become more thorough and widespread in the coming years.

Our office is available to assist employers to prepare for immigration-related worksite visits by developing and implementing vigorous compliance policies, auditing I-9s and H-1B public access files, and planning how to respond when immigration agents visit.

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