USCIS FRAUD DETECTION AND NATIONAL SECURITY WORKSITE VISITS (FDNS)

The following information is intended to provide employers with some background as to the purpose of the FDNS site visits as well as basic guidance as to what employers should know and expect in anticipation of these visits.  Please contact us if you have questions or would like to discuss how your company can implement a procedure to deal with these visits.

WHY FDNS WORKSITE VISITS?

USCIS recently started to conduct worksite visits of U.S. companies and other entities that employ foreign workers through H-1B and L-1 petitions.  These worksite visits are carried out by USCIS’ Office of Fraud Detection and National Security (FDNS).  The primary mission of the FDNS is to detect, pursue and deter immigration benefit fraud.  The program is funded through the $500.00 fraud fee required with initial H-1B or L-1 filings. Although most worksite visits will occur in connection with post-adjudicated petitions, USCIS may initiate a visit and investigation prior to adjudication of the petition. In most situations, officers or investigators will arrive at the worksite unannounced and employers should be prepared for such surprise visits.  If the employer does receive advance notice of a site visit, the employer should contact our offices immediately.

WHAT IS THE PURPOSE OF THE FDNS SITE VISIT?

The purpose of the visits is to verify that the working conditions stated in the underlying immigration petition do actually exist.  Officers will generally have a copy of the filed petition.  In addition to verifying the validity of information in the petition, FDNS is also using information collected during the site visits to help USCIS develop a fraud detection database.  The information gathered will help USCIS develop profiles of the types of employers that have records of good faith use of immigration programs and records of immigration compliance as well as profiles of the types of employers that have records of engaging in fraud.

WHAT WILL HAPPEN DURING THE VISIT?

In most cases, a FDNS worksite visit will be unannounced and last approximately 15-90 minutes.  The visit may occur at the employer’s principle place of business or the specific worksite of the H-1B/L-1 employee. The FDNS investigator will usually ask to meet with a company representative as well as the H-1B/L-1 foreign national employee.  The investigator may request to see the employee’s actual worksite and may take photographs for his/her record.  The investigator may also request to speak with a co-worker or supervisor of the foreign national employee and/or request certain documents relating to the foreign national’s H-1B or L-1 paperwork.

The FDNS investigator will seek information relating to the petitioning employer; the relationship between the petitioner and beneficiary; whether the beneficiary is or will be employed in the capacity described and at the location(s) specified in the petition; and whether the beneficiary has the requisite experience and/or qualifications. The information gathered with respect to the employer may be focused on any of the following: nature of the employer’s business; annual revenue; number of employees; and employer’s overall use of the specific immigration programs.

FDNS officers have also been requesting access to business records beyond those required for nonimmigrant petitions including:  tax returns; quarterly wage reports; corporate leases; employment and consulting contracts; any documentation to evidence that the petitioner is a bona fide business; or payroll records or pay statements for the foreign national employee.

The FDNS officer will also inquire about the H1B beneficiary’s background in terms of the following:  job title and duties; work location; H-1B holder salary; pay statements; Form W2; information about prior H1B petitions; or information about immigration counsel. The officer will then likely want to interview the H1B beneficiary to inquire about his/her job title, duties, employment dates, position location, requirements for the position, his/her educational and experience background, current address and dependents.

WHAT SHOULD AN EMPLOYER DO DURING A FDNS WORKSITE VISIT?

Since most FDNS worksite visits will be unannounced employers should prepare procedures ahead of time.  If your company is the subject of an unannounced FDNS worksite visit we recommend that you fully cooperate with the investigator and answer questions to the best of your ability.  Your company must assign a representative to handle the visit and that representative should follow these basic guidelines:

*   Meet with the FDNS investigator in a conference room rather than in your office.

* Request the name, title and contact information for the FDNS investigator.  Request a business card with a number to call and confirm the investigator’s credentials before continuing with the visit.

* Request to be present during any interviews of any employees.

* Accompany the investigator during his/her review of your facility.

* Do not guess an answer.  Do not be afraid to say “I don’t know” if you are unsure of the correct answer or information.

* Take detailed notes about all of the investigator’s questions and where the investigator visited within your facility.  All notes should be labeled “Privileged and Confidential/Prepared at the Direction of Counsel.”

* Make a note of any documents that the investigator reviewed.

* If the investigator requests to see documents, ask the investigator to be very specific about what documents s/he would like to review. Do not hand over full files without knowing what has been requested and for what purpose. Do not allow the investigator to remove any documents from your files.  If the investigator requests copies of any documents, inform the investigator you will prepare copies of everything and will forward them to his/her address.

* Do not hand over any documents to the investigator for review that are private or confidential, or that was not specifically requested by the investigator.

WHAT COULD HAPPEN IF FDNS DETERMINES FRAUD OR OTHER VIOLATIONS HAVE OCCURRED?

While FDNS/USCIS does not have the authority to impose civil or criminal fines for violations of the terms and conditions of immigration petitions, it may share information gained from these visits with U.S. Immigration Customs and Enforcement (ICE) which could pursue an investigation into any suspected fraud or other immigration violations.  In addition to civil and criminal penalties imposed by ICE, USCIS could revoke the approval of any H1B petitions if the employer or employee is found to have violated the terms and conditions of the petition, or if statements in the petition are found to be inaccurate.

PREPARING IN ADVANCE FOR A FDNS SITE VISIT

Because most FDNS site visits will be unannounced, it is important that your company is prepared in advance for such visits at all of its locations.  This includes ensuring that your company is complying with all legal immigration requirements and adhering to its own policies and procedures.  An employer who is prepared in advance for such a visit will be able to address FDNS inquiries effectively.  Please contact J. David Pena & Associates at (305) 373-5550 or david.pena@myvisausa.com if you have any questions regarding preparation in anticipation of FDNS site visits or would like to discuss implementing a best practices policy to address such visits.

Click here to download checklist for visit from Government Agent/Investigator

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For more information on this or any other topics contact the offices of  J. David Peña at 305.373.5550 or info@myvisausa.com