Be Prepared: DHS Site Visits on the Rise
The Department of Homeland Security (DHS) conducts site visits at the offices of employers who petitioned or are petitioning for temporary work visas on behalf of their employees. These site visits are funded by the $500 “anti-fraud” fee that is a component of the filing fees for H-1B and L-1 petitions. Such visits are currently on the rise as part of the administration’s enforcement efforts. Therefore, it is critical for employers to understand what DHS is checking for and how to respond when a DHS officer or designated agent knocks on your door.
What is the Government’s Objective in Conducting Site Visits?
Typically, DHS wants to confirm three things: (1) that the employer is a bona fide organization that knowingly filed the visa petition for its employee; (2) that the employee is actually working for the employer in the position that was the subject of the visa petition; and (3) that the employee is receiving the wage promised in the petition.
Who Comes on Behalf of DHS?
Site visits are conducted by U.S. Citizenship and Immigration Services (USCIS) employees or third-party contractors hired by USCIS to conduct the site visits. It is important to verify and record the identity of anyone claiming to be a government representative or agent. If your office is visited, the first step is to politely request to see the representative’s identification to verify the legitimacy of the visit.
Did Your Company or Your Employee Do Anything To Trigger this Site Visit?
In the vast majority of cases, employer site visits are randomly selected. While a company may file hundreds of visa petitions for its employees, on a typical site visit, the representative will come asking about one employee’s case to make sure it “checks out.”
What Questions Will the DHS Representative Ask?
In most instances, the investigator will ask to meet with the company representative who signed the visa petition. He or she will ask for basic information about the employer, such as year of incorporation, locations of its offices, number of employees, and hours of operation. He or she will ask about the employee’s title and job duties, work location(s), and about the employee’s salary. In addition, he or she may ask for proof of wages paid to the employee to confirm that the employee is being paid the rate of pay promised in the petition. The DHS representative may also request to review the H-1B employee’s Public Inspection/Access File.
The representative will also ask whether the employer or the employee paid for the H-1B visa filing fees. As you know from our prior Alerts, the employer must pay the filing fee. Only the premium processing fee of $1225 may be paid by the employee.
The DHS representative or agent will usually ask to meet with the employee in question, and may ask the employee some of the same questions posed to the employee’s representative to see if the answers are consistent. A copy of the employee’s degrees and/or transcripts, recent payslip, passport biographic page, driver’s license and job duties may also be requested.
Will We Get Advance Notice of a Site Visit and Can Our Attorney Be Present?
The procedure varies. Some companies are given advance notice of a site visit, and it is scheduled at the mutual convenience of the DHS and company representative, in which case there is time to arrange for counsel to be present. More frequently, the DHS representative or agent arrives without warning. Once you greet the representative and ascertain the purpose of the visit, including which employee he or she is inquiring about, there should be time to make the DHS representative comfortable in a waiting area or conference room while you contact immigration counsel and obtain the relevant file.
As DHS site visits and investigations can come without warning, and since non-compliant employers are subject to serious fines and penalties, while putting the subject employee’s immigration status at risk, it is critical that your immigration files are in order and that you are prepared ahead of time:
Set up a protocol. Ensure that your company has a designated point-of-contact in the event of a DHS visit. Identify a back-up person to assume this function if the designated person is out of the office or unavailable on the day of the visit, and ensure that the appropriate staff are aware of the contact persons.
Ensure that your immigration files are in good order, including I-9s files; H-1B Public Inspection/Access Files, and payroll records. These sets of files should be reviewed and updated annually.