As an employer whose personnel include foreign nationals on temporary (nonimmigrant) visas, you need to be aware that the process isn't over when the employee gets the visa and shows up for work. Your workplace may later be subject to inspection.
A special office of U.S. Citizenship and Immigration Services (USCIS), called the Office of Fraud Detection and National Security (FDNS), investigates potential fraud in immigration petitions (filed by employers on Form I-129). The FDNS visits the employers’ offices to confirm that the information in the petition is true. Called “site visits,” the FDNS conducts these for H-1B, O-1, R-1, and L-1 workers.
If the FDNS discovers fraud, it informs USCIS that it should deny the petition or revoke the petition if USCIS already approved it. The employer will also be subject to penalties including severe fines.
The FDNS is not required to inform the employer about an upcoming site visit. Such visits are often unannounced, so it is important to be prepared. Employers as well as foreign workers can learn how to prepare for a site visit here.
Since the purpose of the site visit is to confirm the facts in the I-129 petition, the visiting FDNS officer will ask questions about these facts, such as what type of work the foreign employee is performing, what is the employee’s pay rate and hours, how many foreign workers the employer already employs, and so forth.
The officer may also ask to review the employer’s financial documents such as tax returns, W-2 forms for the latest year, and payroll records. However, officers typically stick to just asking questions. Most site visits last about half an hour, but they can last longer (or shorter) depending on how many questions the officer wants to ask.
The FDNS officer usually addresses the questions to the employer’s representative and the foreign worker – officers do not typically question other workers. The officer may ask the foreign worker and the employer the same questions, just to see whether the two parties give similar answers. Discrepancies may make the officer suspicious, so it is important that both parties know the information provided in the petition.
For instance, let’s say an employer files an I-129 for a Russian citizen to work as a pediatrician. In the petition, the employer states the pediatrician’s salary is $90,000 per year. During a site visit, the FDNS officer asks the pediatrician about the salary. If the pediatrician does not know the salary and answers $80,000 by mistake, the officer may think the employer provided fraudulent salary information on the petition, and can recommend that USCIS revoke its I-129 approval.
This scenario illustrates an important point. An employer or foreign worker who does not know the answer to a question should NEVER guess. Instead, the employer or worker should say, "I do not know the answer, but will provide it as soon as possible."
The best preparation for a site visit is for the employer and the foreign worker to review, and if necessary confirm, all of the facts stated in the I-129 petition. (This means the employer and the worker should have retained a copy of the filed petition for their records.)
The employer should have already designated a company representative as the go-to person for site visits. In practice, this person is usually the employer’s immigration attorney or HR representative. This person must have copies of all of the company’s I-129 petitions and be able to answer basic questions about the company (such as the number of employees (foreign and domestic), the year the company started business, and so forth). This person should also have copies of the company’s tax returns, W-2 forms, and payroll records.
(Please note that employers are required to retain specific documents in connection with H-1B petitions, and must provide these documents during a site visit. See "Employer's Obligations to Workers Who Have H-1B Visas" for more information).
Employers should also inform their receptionists of the possibility of an FDNS visit. The receptionist should know exactly where/to whom to direct an FDNS officer, and should be instructed to contact the employer representative and the foreign worker immediately upon the officer’s arrival.
There are a couple of red flags known to trigger an FDNS site visit. For example, the FDNS is likely to conduct a site visit for petitions that state the foreign worker will be placed at a worksite location that is different from the employer’s actual location. These arrangements frequently occur with information technology (IT) workers.
For instance, let's say Company A is an IT services provider that wants to employ a foreign worker as a Computer Programmer. Although Company A will be the worker’s employer, the worker will provide the Computer Programming services for Company A’s client Company B, at Company B’s location. In this situation, Company B is the “end client.” Because these arrangements can be confusing, the FDNS conducts site visits to confirm that the worksite location explanation on the I-129 is correct, and that Company A truly will be the foreign worker’s employer.
Additionally, the FDNS is likely to conduct a visit if the employer has previously committed immigration fraud. After the FDNS discovers the fraud, it will carefully scrutinize all subsequent immigration petitions filed by that employer. This illustrates why it is of the utmost importance to provide true and accurate information on all visa petitions.