A year ago, we reported on “site visits” conducted by U.S. Citizenship and Immigration Services (USCIS) contractors to verify the facts contained in H-1B temporary worker petitions filed by employers. Click here for our September 2009 Immigration Insights report. Now, the U.S. Department of State (DOS), which operates the U.S. consulates and embassies that issue visas to foreign nationals, is conducting its own telephonic contact with employers who have filed petitions in order to verify representations contained in employers’ petitions.

The kinds of petitions impacted include H-1B, H-2, H-3 (Temporary Worker or Trainee), L-1 (Intracompany Transferee), O-1 (Extraordinary Ability), and P-1 Professional Athlete or Entertainer.

Background

Employers seeking to sponsor a foreign national in one of the above classes must first file a petition with USCIS. If USCIS approves the employer’s petition, USCIS forwards a duplicate copy of the petition to the U.S. Department of State (DOS)’s Kentucky Consular Center (KCC). The KCC is responsible for inputting data into a database that U.S. consulates and embassies must tap into before issuing a visa to the sponsored foreign national. The KCC’s database is the primary source of evidence used by consular officers to determine nonimmigrant petition approval. In addition to information related to the petition, many KCC database records also contain information from DOS’ Fraud Prevention Unit. The Fraud Prevention Unit performs research on employers on a random basis and verifies factual aspects related to the foreign national and the proposed U.S. employment.

What DOS and the KCC are Doing

DOS has decided to create a base petitioner record in the KCC database for all first time employers or “petitioners.” To create this base petitioner record, the KCC verifies petitioner information contained in the petition as filed with USCIS including, but not limited to, review of the company website, company contact information, and use of Google earth to confirm that an office exists in an appropriate physical location. Once the base petitioner record is complete, the KCC will not normally re-verify the petitioner information for two years.

Foreign National or Beneficiary Reviews

DOS also has initiated a pilot program to verify information related to foreign national beneficiaries and their proposed U.S. employment. These checks are random and are primarily completed through telephonic contact with the sponsoring employer. Telephonic contact by KCC is unannounced and should be anticipated to occur shortly after the petition is transferred to the KCC from USCIS. Once the beneficiary review is completed, the findings normally are finalized within two days and then made available to U.S. consular officers. Consular officers are instructed to review the report, question the foreign national regarding any discrepancies, and ask that the KCC correct any information if a finding was in error. If the discrepancies were not in error, the consular officer will provide additional information to the KCC to update the report to include any additional incriminating evidence discovered during the course of the visa interview of the foreign national.

The KCC has designated 15 contractors to conduct telephonic beneficiary reviews with sponsoring employers. These contractors contact employers (petitioners) and request to speak to an authorized company official. They then ask a series of questions verifying certain information contained in the approved visa petitions. These questions include, but are not limited to:
 

1. Whether the petitioner, in fact, submitted the petition;
2. When the petitioner was established;
3. Physical location of the petitioner;
4. Number of employees;
5. Names of shareholders;
6. Location of Attorney of Record;
7. General information regarding the petitioner’s operations and business plan.

Practice Pointers for KCC Telephonic Reviews 

• Employers should ensure that they have designated a company representative to be contacted in the event of a random telephonic inquiry from the KCC.
• Employers should promptly notify their immigration counsel of the KCC contact and, if possible, should have counsel on the line when the employer speaks with the KCC contractor.
• Employers should request the name of the KCC contractor and confirm the credentials of the contractor with the KCC before providing any information. Confirmation may be obtained by contacting the KCC at (606) 526-7500. (There are multiple governmental agencies that may audit the petition. Therefore, it is critical that employers determine which agency they are providing information to in the event follow up is needed.)
• Employers should not to speak with government agents or contractors without a witness present. If counsel is not part of the conversation with the KCC, both the witness and the employer representative should prepare notes of what transpired during the telephonic interview, label the notes “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit their notes to counsel for review and retention.
• Employers should retain complete copies of their USCIS-filed petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to the telephonic interview by the KCC contractor, the designated official should retrieve this documentation and review it prior to speaking with the KCC contractor.
• If the KCC contractor requests information from the employer and the employer cannot provide accurate information without further research, the employer should indicate this to the KCC contractor. The employer should not “guess” about any information provided during the call. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the KCC contractor to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the KCC contractor, and there are no other company representatives available to answer the questions during the unannounced telephonic contact.
• Employers should remember that any derogatory information obtained during the telephonic contact and subsequent visa interview abroad could be used regarding a previously approved petition in the post-adjudication process, and/or could be referred to USCIS and/or U.S. Immigration and Customs Enforcement for further investigation, which could lead to civil penalties or criminal prosecution.