The Fraud Detection and National Security (“FDNS”) unit of USCIS recently announced plans to expand its worksite inspection program to include L-1 employers, likely in response to the 2013 report by the Department of Homeland Security (“DHS”) that addressed fraud and abuse in the L-1 program.
In a typical FDNS audit, DHS inspectors (or third party government contractors) will conduct pre- and post-adjudication site inspections, usually without notice, at the petitioning employer’s principal place of business and/or at the work location set forth in the petition documents. The purpose of the site inspection is to verify the validity of the information submitted to USCIS with the nonimmigrant petition and ensure compliance with the terms and conditions of the relevant nonimmigrant status. This may include an audit of any of the following information: (1) that the petitioning employer exists and is engaged in the operations set forth in the petition, (2) that the stated job duties are in line with the employee’s classification as either a manager or executive (L-1A) or specialized knowledge employee (L-1B), and (3) the company is paying the employee the wage indicated in the petition and that the wage is consistent with the listed duties and level of experience.
During the audit, FDNS inspectors may seek to review documents, speak with company representatives, and interview L-1 employee(s). Inconsistencies between the petition and the actual worksite conditions could trigger a Notice of Intent to Revoke (“NOIR”) the approval of the subject L-1 petition(s). Moreover, the employer’s failure to provide the appropriate documentary evidence requested in the NOIR also could lead the USCIS to revoke the petition.
To date, USCIS has provided little guidance regarding L-1 regulatory compliance. As such, sending FDNS officers to company worksites to investigate a petitioning employer’s compliance with the L-1 program raises significant questions.
With or without additional guidance from USCIS, L-1 employers should be prepared for FDNS site visits (and take them seriously should such a visit occur). In advance of an FDNS site visit, L-1 employers should conduct an internal audit of all L-1 employees to ensure that their job duties, worksites and salaries are readily available. Employers should also retain complete copies of all I-129 petitions and paperwork filed with USCIS. Additionally, employers should ensure that L-1 employees and their managers are aware of the content of the I-129 petition(s) and supporting documentation. While there is currently no requirement under the regulations to file an amended L-1 petition due to minor changes in employment, employers are required to file an amended petition if there has been a substantial change in employment (e.g., full-time to part-time, change in job location outside of MSA), or if it has been determined, post-filing, that there is a material fact provided in the petition documents that is false.
Here are some practice pointers in dealing with an FDNS site visit:
- The company representative should request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit different nonimmigrant programs (e.g. the H-1B program), including ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. Therefore, it is critical that the company representative determine which agency he/she is providing information to in the event follow up is necessary.
- If the investigator identifies him/herself as a USCIS FDNS contractor, the company’s representative should request a business card with a toll free number to obtain confirmation of his credentials prior to providing any information.
- Legal counsel for the L-1 employer should be advised of the visitation prior to the start of any interviews of company representatives and should attend in person or by phone, if possible.
- A company representative and/or counsel should accompany the FDNS officer during his/her review of the facility and request to be present during the interviews of any of the company’s employees. (This request may be denied in order to obtain the most candid responses from the employee).
- The company representative should take notes of all information requested, and provided to, the FDNS officer – both verbally or in writing, including the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit.
- Always provide complete and accurate information whether requested to do so onsite or subsequently via email.
- If the FDNS officer has not gathered the required information, the officer will follow up with the L-1 employer via telephone or email to obtain additional information to complete the compliance review. (Counsel may assist with preparing such response).
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