Employers of L-1 transferees should now set up processes to deal with such visits.
U.S. Citizenship and Immigration Services (USCIS) recently announced its intention to begin conducting worksite inspection visits to L-1 employers under the agency’s Fraud Detection and National Security (FDNS) Division’s Site Inspection Program.
Worksite inspection visits currently take place at H-1B employer worksites in accordance with the creation and implementation of USCIS’s Administrative Site Visit and Verification Program, which was created in July 2009 in an effort to root out H-1B fraud. Random H-1B site visits occur at the worksites of employers of all sizes and across all industries. The visits seek to ensure that H-1B employment is in compliance with the terms of the H-1B program and the information contained in H-1B petitions. H-1B site visits have become increasingly common.
Expansion of the site visit program to include L-1 petitioners comes in response to a report titled “Implementation of L-1 Visa Regulations,” which was released by the Department of Homeland Security’s Office of Inspector General (OIG) and which assesses USCIS’s L-1 intracompany transferee program. OIG issued the report in response to concerns over fraud and abuse in the L-1 visa program. The report suggests ways to make the program more fraud-proof and to ensure that adjudications are more uniform. The OIG report finds that new L-1 office petitions and extensions are particularly susceptible to abuse and are sometimes erroneously approved. The report therefore recommends that USCIS officers make a site visit a mandatory requirement before renewing L-1 new office petitions.
In responding to the OIG’s recommendations, USCIS stated that the FDNS expects to begin conducting postadjudication, domestic L-1 compliance site visits in the first quarter of fiscal year 2014. Whether USCIS intends to extend these site visits to all individual L-1 petitions, and not merely new office petitions, remains to be seen. It has been noted that the site visit program will not apply to L-1 blanket petitioners or beneficiaries, as USCIS currently has no mechanism to identify L-1 admittees under the L-1 blanket program.
Employers are advised to keep their legal counsel informed of any changes to L-1 employment, such as job duties, work location, or placement at a client site, to ensure that any changes are reviewed and discussed and that any necessary amendments are made to the L-1 petition.
What to Do in the Event of a Site Visit
Site visits are conducted either by USCIS officers or employees of private investigation firms contracted by USCIS. The visits typically last between 15 minutes to an hour, although longer visits are possible.
Site visits can take place at any time during the workday, and, while some officers may contact the employer by telephone or email to provide advance warning of an upcoming visit, the majority of visits occur with no prior notification. In the event that an employer learns in advance that a site visit will occur, the employer is advised to contact its legal counsel immediately.
Given that these visits are often unannounced, employers should educate their receptionists at all worksites about the possibility of USCIS site visits and should have protocols in place to contact employers’ immigration managers immediately upon the arrival of USCIS officers. The immigration managers, in turn, should immediately contact their legal counsel.
The immigration manager responsible for the site visit should ask to see the officer’s identification and business card. If the employer has any concerns about the officer’s credentials, the employer may call the telephone number on the officer’s business card to verify the officer’s authority to conduct the investigation. The employer should note the officer’s name, title, and contact information.
What to Expect During a Site Visit
Generally, the officer making the site visit is seeking to verify information in a particular nonimmigrant petition pertaining to a particular foreign national. The officer will likely have a copy of the petition on hand and will ask to speak to the employer representative that signed the L-1 petition as well as the foreign national beneficiary of the petition.
If the officer asks to speak with the foreign national employee and the employee is present at the worksite, he or she should be made available to meet with the officer. However, the meeting should only take place in the presence of the immigration manager responsible for the site visit, even if the officer asks to meet with the employee alone. If the officer insists on meeting alone with the employee, the immigration manager should contact legal counsel by telephone and have a lawyer speak directly to the officer. The purpose of the immigration manager’s presence is not to limit the responses that may be proffered by the employee or to restrict what he or she may say, but simply to ensure that inappropriate liberties are not taken by the officer and that the discussion does not exceed its proper scope. The officer will ask the foreign national employee details about his or her employment, such as job title, job duties, salary, work location, or work hours.
The officer will almost certainly wish to take a tour of the worksite and will likely ask to see the office or cubicle where the employee in question works. He or she may also ask to be allowed to take photographs of the exterior and interior of the worksite. If the worksite contains secure areas that are not accessible to the public, the immigration manager responsible for the site visit should inform the officer of the security concern involved and offer the opportunity to tour a nonsecure area of the worksite. If the officer insists on access to a secure area, the immigration manager should contact legal counsel by telephone and have a lawyer speak directly to the officer. If there is a policy prohibiting the taking of photographs of certain areas within the worksite, the officer should be informed of this policy and permission to take photographs should be denied.
The officer may also ask for a copy of the foreign national’s driver’s license, business card, most recent paystub, and last Form W-2. These documents should be made available, if possible.
What to Expect After a Site Visit
There is no formal outcome of a USCIS site visit, and the employer will not be notified of whether or not it has “passed” the site visit. If the officer is satisfied that no fraud has occurred and communicates this fact to the USCIS Service Center that adjudicated, or is in the process of adjudicating, the subject petition, no further action is likely to be taken and the employer will likely hear nothing more. If, however, an issue arises and a suspicion of fraud is communicated to the Service Center, negative action with respect to the subject petition will follow. Such action could take the form of a petition denial, a request for additional evidence, or, in a situation where the petition has already been approved, a notice of intent to revoke the approval of the petition.
Morgan Lewis is monitoring developments with respect to the L-1 site visit program and will provide updates as details become available. For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following lawyers: