U.S. Citizenship and Immigration Services (USCIS) Intensifies Worksite Audits
Since 2005 USCIS has collected a $500 fraud prevention and detection fee for each new H-1B or L-1 petition filed with USCIS and now has accumulated a substantial war chest of funds. The agency has engaged outside contractors (some of whom are former U.S. Immigration and Customs Enforcement and other governmental agents) who are actively conducting approximately 25,000 site visits to organizations that filed H-1B (specialty occupation) and L-1 (intracompany transferee) petitions.
Operating as an extension of USCIS’ Fraud Detection and National Security (FDNS) operation, the agents are making an ever increasing number of unannounced worksite visits to interview Human Resources personnel, H-1B and L-1 workers, and sometimes others to determine if the information and documentation contained in the H-1B or L-1 petition was accurate and truthful and whether the employee is performing the described duties, at the promised wage, and at the location indicated in the petition filed with USCIS. The visit may also include an inspection of the Labor Condition Application public access or compliance files.
Aside from the obvious step to review carefully cases before filing with USCIS to ensure that all information is accurate, honest and defensible in the event of an audit, employers should also ensure that if they wish to change the sponsored employee's job title, duties or work locations, they consult with immigration counsel in advance. Employers should also ensure that their Human Resources staff are versed in what to do if a USCIS officer or contractor comes knocking without notice, including asking for and copying the officer's identity documents, contacting immigration counsel immediately, and determining (in advance) what information and documents – if any at all – the employer is prepared to provide to the government at that time.
Although USCIS may have a basis to conduct a site visit in connection with an H-1B or L-1 petition that is pending with USCIS, we do not agree that USCIS has carte blanche authority to enter an employer’s business and demand immediate access to personnel, documents or files (except the Labor Condition Application public access file) absent a warrant or subpoena. That is not to say that employers necessarily will want to play hardball, but common business practice is to call in advance and request a meeting, not to show up unannounced and expect immediate access to personnel and files. Courtesy is always appropriate, and arranging a mutually convenient time to conduct the worksite inspection is entirely reasonable.
Some USCIS officers or contractors request internal job descriptions that may differ to some extent from individualized descriptions that employers submit to USCIS to demonstrate how the job meets USCIS’ H-1B or L-1 requirements. Employers should consider whether to release these internal job descriptions and, if they do release them, to add language indicating something along the following lines: "This job description depicts the core job duties and general requirements of this position. We often employ workers who perform more specialized versions of this core job so actual job duties and requirements may vary from worker to worker due to such variations."
Additionally, the U.S. Department of Labor ("DOL") sometimes has been sending questionnaires to H-1B employees to determine how the employee came to work for the U.S. employer, when the employee began employment, and particularly whether the employee is paid regularly and at the proper wage. The clear intent of the questionnaire is to find violations of the Labor Condition Application rules such as working offsite in an impermissible fashion, not being paid properly, and so on. Both with the USCIS and DOL investigations, there is a governmental interest in finding violations and levying fines to justify the millions of dollars employers have paid to USCIS to hire staff to investigate the same employers.