1. Preparing for A New Era in H1B and L1 On Site Inspections

2. Administrative Site Visits
Development and goals of Fraud Detection and National Security Directorate (FDNS) and Administrative Site Visit and Verification Program (ASVVP)
Current FDNS/ASVVP practices and objectives
H-1B Compliance-Matter of Simeio Solutions
Policies and protocols for compliant site visits
Best practices for managing an Administrative Site Visit
Post site visit compliance actions

3. Fraud Detection and National Security
FDNS created 2004; promoted to Directorate in 2010
FDNS Mission: Determine whether immigrants pose a threat to national security, public safety or the integrity of the legal immigration system
Authority: INA §2126(a)(6)(C)(i); 8 CFR §103.2(b)(7); 8 USC §§1103, 1155, 1184, and 8 CFR parts 103, 204, 205, and 2014
Links USCIS with law enforcement and intelligence agencies

4. FDNS Statistics Who performs the site visits:
Field Auditors, Service Center Analysts, Overseas Investigators
Who is affected:
H-1B employers (since July 2009)
L-1 employers (since June 2014)
R-1 employers
How many affected:
75,000 site visits between July 2009 and May 2014
Program funding:
Resources allocated from $500 Fraud Detection and Prevention Fee

5. ASVVP Compliance Review
Site Visit Compliance Concerns
Physical existence of Petitioner’s business
Employment details misrepresented
Beneficiary not employed in the location specified in LCA/Petition
Beneficiary not performing specified job duties
Petition has been withdrawn
Beneficiary not being paid certified wage
Beneficiary not employed by the Petitioner

6. Site Visit Compliance Concerns
AAO Precedent Decision Matter of Simeio Solutions, LLC, 26 I&N Dec (AAO 2015)
USCIS Policy Memorandum , USCIS Final Guidance on When to File an Amended or New H-1B Petition Worksite change requiring new LCA = material change mandating amended H-1B petition
Amended H-1B Petitions Required for Worksite Changes outside metropolitan statistical area of employment
Requirement to amend excludes moves within MSA, short term placements and non-worksites

7. Protocols for Company Site Visits
Establish an internal site visit process and action plan
Develop and prepare plan for facilities/front desk staff, local HR business partners, managers and /or legal staff;
Identify main point of contact or “go to” person for site visits;
Provide FAQs for foreign national employees and managers to understand site visit process
Ensure company contact has available access to reference I-129 petitions and LCA Public Access File records

8. Site visit interview
Front desk/initial point of contact confirms site inspector’s identity and foreign national of concern and initiates appropriate contacts with HR/employee/manager
Contact immigration counsel for assistance in person or over the phone
Ensure adherence to company protocols regarding visitors at worksites
Make notes of Q&A between site inspector, HR, manager, employee and the need for any follow up.
If employee/manager are unavailable, offer to arrange follow up meeting or provide documentation

9. Post Site Visit Actions
Immigration Counsel/HR/Company Actions following Site Visit:
Provide additional relevant information requested by ; maintain notes/record of site visit details
If technical violation identified (i.e. employee at new worksite, different job, etc.), take immediate proactive corrective action with filing of new LCA/amended H-1B
Special issues and concerns for mobile L-1 and H-1B employees – successive amended petitions

10. Generally
Within one working day of filing a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), an employer must establish a public access file (also referred to as a “public inspection file”) which must be made available upon request to any member of the public;
Access to the file may not be limited to “interested parties” or “aggrieved parties”;
The public access/inspection file must be maintained at the employer’s principal place of business in the United States, or at the place of employment.

11. Public Access Files Must Include
Copy of signed and certified LCA (Form ETA 9035 or Form ETA 9035E) and cover pages (Form ETA 9035CP);
Statement of actual current rate of pay for the H-1B worker admitted under the LCA;
Prevailing wage determination, including description of the source and methodology for the prevailing wage;
Memorandum by the employer explaining actual wage determination;
Evidence that the notification requirement regarding filing of the LCA has been met

12. Public Access Files Must Include
Summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants;
Statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits and/or, where applicable, a statement that some/all H- 1B nonimmigrants are receiving “home country” benefits;
Where an employer undergoes a change in corporate structure and chooses to assume the LCA obligations of the previous employer, a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and EIN of the new employing entity;

13. Public Access Files Must Include
Where the employer utilizes the definition of “single employer” to determine its H-1B dependency status, a list of any entities included as part of the single employer in making the determination;
Where the employer is H-1B dependent or a willful violator and indicates on the LCA(s) that only “exempt” H-1B nonimmigrants will be employed, a list of such “exempt” H-1B nonimmigrants; and
Where the employer is H-1B dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers.

14. Public Access File Maintenance
The employer must keep current in the file information regarding the actual rate of pay for the H-1B worker;
If additional notice procedures must be followed with regard to the H-1B worker, because the worker is assigned to additional work sites within the area of employment listed on the LCA, evidence that the notice requirements have been met with regard to the additional work sites should also be included in the public access file.

15. L-1 visa - The Fraud Detection and National Security Process
The Fraud Detection and National Security (FDNS) unit of USCIS has begun inspecting L-1 visa holders as planned.
L-1 petitions are 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.
FDNS has inspected (and likely is continuing to inspect) H-1B holders for several years.

16. L-1 visa holders and their employers are the latest target
FDNS is concerned that the information submitted to USCIS is accurate and is focused on detecting fraud in applications for immigration benefits.
The FDNS officer conducting the review will be trained to initially ask the L-1 beneficiary a standard set of 10 questions, which should be answerable based on information submitted in the L-1 petition

17. . Although USCIS has not yet released these questions, these questions are likely to include:
1. What is your job title? 2.What is your salary? 3.What is your length of service? 4.Do you have direct reports? If so, what is their education level? 5.Who do you report to? 6.Have you paid for any of the filing fees or attorneys fees in conjunction with the L-1 application? 7. Have you filed for permanent residence (I-140)? 8.Has there been any discussion of such filing? 9.Is any other application pending with USCIS? 10. What is your current residence? 11. What is your marital status? 12. What is your address? 13. Have you been in the U.S. in any other status before, including visitor?
The officer will also give a written request for information to be completed in a certain period of time and returned.

18. On site interview
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 , 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.

19. What should you do when an FDNS officer arrives?
We recommend that no one speak with FDNS (other than a general greeting) without an attorney present or on the phone.
You may say that it is a company policy and offer to call the attorney at that time.
You may offer to set up another time if the attorney is not available.
Keep in mind that you have a right to counsel that the FDNS officer cannot refuse to recognize.
You have no obligation to speak to the FDNS officer without your attorney present.
Before answering questions, we advise that you review the I-129 and exhibits and note any changes so you can point them out in your answers.
Before submitting information to the government, we also advise that you consult your counsel or have counsel prepare the response directly.
Although usually FDNS inspections are brief encounters and although you have nothing to hide, miscommunications can result from these inspections.
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.
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 30 days to respond to the Notice of Intent to Revoke (NOIR).

20. USCIS’ FRAUD DETECTION AND NATIONALITY SECURITY (FDNS)
Employers should be prepared for an on-site visit by investigators from USCIS’ Fraud Detection and Nationality Security (FDNS) Directorate and Immigration and Customs Enforcement (ICE). Additionally, employers may be subject to investigation by the Department of Labor’s Wage and Hour Division (WHD).
Source: “Practice Pointer: USCIS’ FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to H-1B Employers and Their Clients,” available at AILA InfoNet at Doc. No (Oct. 1, 2009).
USCIS’ National Threat Assessment Unit (NTAU) may also conduct on-site visits. Id.

21. Who’s on their Radar (the “‘10/25/10’ formula.”)?
USCIS identified three specific fraud indicators:
petitioners with a gross annual income of less than $10 million,
petitioners that employ 25 employees or less, and
petitioners whose business was established within the last 10 years.
USCIS refers to this as the “‘10/25/10’ formula.”
Source: Freedom of Information Act (FOIA) suit, on May 18, 2012, USCIS released its October 31, 2008, memorandum, “H-1B Anti-Fraud Initiatives — Internal Guidance and Procedures in Response to Findings Revealed in H-1B Benefit Fraud and Compliance Assessment” (Oct. 31, 2008) and “USCIS H-1B Petition Fraud Referral Sheet.”

22. Other items to be Scrutinized
In addition, for cases in which the petitioner falls within the so-called “10/25/10” formula, USCIS directs adjudicating officers to closely scrutinize petitions for the presence of the following:
1) Physical job location is not listed on the Form I-129 petition and/or LCA;
2) The beneficiary is not receiving the prevailing wage listed on the LCA (e.g., salary discrepancies
or mismatches);
3) Any misrepresentations regarding the beneficiary’s current or prior immigration status (e.g.,
passport, Form I-94, or visa discrepancies);
4) Any evidence that the beneficiary paid the ACWIA fee associated with the H-1B petition;
5) Any conflicting information about the business and or its operation;
6) The facility would not be appropriate for the type of work to be performed; or
7) The job offered is inconsistent with the normal activities of the business.
Source: “Written Testimony of Donald Neufeld, Associate Director, Service Center Operations Directorate USCIS, for a Hearing on ‘H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers, before the House Committee on the Judiciary Subcommittee on Immigration Policy and Enforcement’” (Mar. 31, 2011).

23. As an Employer, What do I do?
If a site investigator identifies himself or herself as a USCIS FDNS contractor, the employer should
Request a business card with a toll-free number to obtain confirmation of his or her credentials prior to providing any information.
Request that an attorney be present.
FDNS site visits are generally unannounced and that FDNS officers are usually not amenable to rescheduling, counsel may be present by phone if requested.

24. What exactly are they Requesting?
The investigation FDNS officer may request to do or see any or all of the following:
Speak with the employer’s representative who signed the Form I-129 or a human resources manager;
Request evidence that would establish that the company is a bona fide business, including information about the employer’s business, locations, and number of employees; tax returns; quarterly wage reports; or other company information;
Request detailed information about the H-1B nonimmigrant’s title, job duties, work location, and salary;
Obtain copies of the H-1B nonimmigrant’s most recent paystub or last W-2 form;
Review the LCA;
Request information about the number of H-1B petitions previously filed by the employer;
Request information about the employer’s immigration counsel;
Tour the facility;
Take photographs of the facility;
Interview the H-1B beneficiary to inquire about job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background, previous employment, current address, and information about his or her dependents; or
Speak with colleagues or managers of the H-B beneficiary to verify the information obtained from the employer’s representative and the H-1B beneficiary.

25. The Department of Labor’s Wage and Hour Division (WHD)
The Wage and Hour Division (WHD) may require employers to make available such records, information, persons, and places as the WHD deems appropriate to copy, transcribe, question, or inspect, and no employer may intimidate, threaten, restrain, coerce, blacklist, discharge, retaliate, or discriminate against a person because such person has filed a complaint, testified, exercised any rights under 20 C.F.R. part 655, subpart I, or consulted an attorney with respect to matters related to the LCA program. 20 C.F.R. §§ through .801.
The WHD also has the authority to initiate investigations on its own. See 20 C.F.R. § (b).

26. Complaints and “Willful Failure”
The WHD shall, through an investigation pursuant to a complaint or otherwise, determine whether an H-1B employer has:
Filed an LCA misrepresenting a material fact in violation of 18 U.S.C. § 1001;
Willfully failed to pay wages as required;
Willfully failed to provide required working conditions;
Filed an LCA during the course of a strike or lockout in the course of a labor dispute;
Failed to provide notice as required;
Substantially failed to be specific on an LCA as to the number of workers sought, the occupational classification in which the worker would be employed, or the wage rate and conditions under which the worker would be employed;
Displaced a U.S. worker as prohibited by 20 C.F.R. § ;
Failed to make available required documents for public examination;
Failed to maintain required documentation; or
Otherwise failed to comply. 20 C.F.R. § (a)
“Willful failure” means a knowing failure or a reckless disregard with respect to whether the conduct was contrary to INA § 212(n)(1)(A)(i) or (ii) or 20 C.F.R. § or

27. Penalties
Upon determining the employer has failed to pay required wages or fringe benefits, the WHD shall assess and oversee the payment of the difference between the wages paid and the required wages to be paid or the provision of fringe benefits not provided as required. 20 C.F.R. § (a).
The WHD also has the authority to assess civil money penalties in the amount of $1,811, $7,370, or $51,588 per violation. Serious violations may also lead to employers being “debarred” and prevented from future participation in the H- 1B program, as well as other nonimmigrant and immigrant programs for a period of one to three years. 20 C.F.R. § ; INA § 212(n)(2)(C)(iii).

28. Civil money penalties. $1,811
Pursuant to 20 C.F.R. § (b)(1) the WHD assesses penalties not to exceed $1,811 for any of the following:
A violation pertaining to a strike or lockout (§ ), or displacement of U.S. workers (§ );
A substantial violation pertaining to notification (§ ), LCA specificity, (§ ) or recruitment of U.S. workers (§ );
A misrepresentation of material fact on the LCA;
An early termination penalty paid by the employee (§ (c)(10)(i));
A payment by an employee of the additional $500 or $1,000 filing fee (§ (c)(10)(ii)); or
A violation of record-keeping provisions for public access (§ ) where such violation would impede the WHD from determining whether a violation has occurred or would prevent the public from obtaining sufficient information to file a complaint. 20 C.F.R. § (b)(1).
*For the above violations, the employer is also barred from filing petitions for one (1) year. 20 C.F.R. § (d)(1).

29. Civil money penalties (continued). $7,370
Pursuant to 20 C.F.R. § (b)(2) the WHD assesses penalties not to exceed $7,370 for any of the following:
Willful failure pertaining to wages or working conditions (§§ , ), strike or lockout, notification,
LCA specificity, displacement (including placement of an H-1B nonimmigrant at a worksite where the other or secondary employer displaces a U.S. worker), or recruitment;
Willful misrepresentation of a material fact on the LCA; or
Discrimination against an employee (§ (a)).
*For the above violations, the employer is also barred from filing petitions for two (2) years. 20 C.F.R. § (d)(2).

30. Civil money penalties (continued). $51,588
Pursuant to 20 C.F.R. § (b)(3) the WHD assesses penalties not to exceed $51,588 per violation if the employer — regardless of whether the employer is H- 1B dependent, a willful violator, or neither — displaces a U.S. worker employed by the employer in the period beginning 90 days before and ending 90 days after the H-1B petition is filed, in conjunction with
Willful violation of any of the provisions set forth in 20 C.F.R. §§ (a)(2) through (9) pertaining to wages or working condition, strike or lockout, notification, LCA specificity, displacement, or recruitment; or
Willful misrepresentation of a material fact on the LCA (§ (a)(1)).
*For the above violations, the employer is also barred from filing petitions for three (3) years. 20 C.F.R. § (d)(3).

31. WHD Administrator’s Determination
The determination will set forth the reason or reasons, prescribe remedies if a violation is found, and inform the interested parties that a request for a hearing must be filed and received within 15 calendar days of the date of determination, and set forth the procedure to request a hearing by filing with the chief administrative law judge and service upon the solicitor of labor. 20 C.F.R. §

32. Request for Hearing and/or Board’s Review
The hearing shall not be more than 60 days from the date of determination and no requests for postponement shall be granted except for compelling reasons. 20 C.F.R. § (c).
The administrative law judge (ALJ) must issue the decision within 60 calendar days of the hearing. 20 C.F.R. § (a).
Any interested party desiring review of the ALJ decision must petition DOL’s administrative review board within 30 calendar days of the date of the decision and serve copies of the petition on all parties and on the ALJ. C.F.R. § (a).
If the board decides to review the decision, it shall serve all parties notice of its intent to review and set the time for submitting briefs within 30 calendar days after receipt of the petition for review. 20 C.F.R. § (c).