For several years, the USCIS Fraud Detection and National Security (FDNS) has been making unannounced visits to prove if the information that foreign employees have been making in their immigration petitions are correct. From the beginning on they have only checked employees residing with an H-1B visa. Since 2014 they are also checking L-1A visas. Recently they have extended the proofs and will also check other employment visa categories. To be prepared in the event of site visit any employer that employs any worker in the US should have the following on file:
- Completed Form I-9 and supporting documents for each employee. Instructions can be found here: https://www.uscis.gov/i-9
- If the employee is a foreign national a copy of the petition filed with USCIS along with all approvals should be kept in the employee file.
- In the event of a visit, the HR or responsible company representative should have a procedure in place, which includes a place to meet with the inspector. Any receptionist or staff should be informed who to contact in case of an inspection. The inspector should not go through the premises on his own, but should always be accompanied by the responsible HR person. The inspector should be directed to the designated meeting place where all relevant employee files will be presented for inspection.
- It’s recommended to have a platform/folder with all relevant documentation for the employees, so that you do not need to start searching when the inspector request a specific document.
- All foreign employees and supervising managers should be familiar with and prepared to answer questions about employment and be consistent will all paperwork filed with USCIS. They do not have a specific set of questions. The questions will surround the number of employees, titles, duties, and verification of Form I-9 and supporting documents. Any filings and approvals from USCIS should be included in any foreign nationals file.
The visits mainly have been introduced, because many high-qualified Americans are being ignored and high-qualified foreign people are being hired. To prove that everything is being handled correctly and no fraud is taking place, the USCIS had introduced those inspections.
Fraud can for example be:
- If the employee is not paid according to the Labor Condition Application (LCA)
- If an US-worker and a foreign worker do not get the same wages for the same work
- If a foreign worker is not as skilled as an US-worker but working on a similar position or
- If the foreign worker is not performing the work mentioned in the petition.
Please note that the inspector is allowed to take pictures, to photograph the foreign worker’s workplace, request documents, interview the employer and also interview the employee directly. It is highly recommended to cooperate and not to refuse any requests.