Law Offices of Rajiv S. Khanna, P.C.
5225 Wilson Blvd
Arlington, VA 22205 USA Ph: (703) 908-4800
Arlington, VA 22205 USA Ph: (703) 908-4800
6 Byers Street
Staunton, VA 24401 USA Ph: (540) 886-6321
Staunton, VA 24401 USA Ph: (540) 886-6321
FDNS H1B Assessment Overview and History:
Recently there has been a flurry of activity with respect to USCIS investigations of H1B employers through the Fraud Detection and National Security (FDNS). FDNS was established in 2004 with the organizational objective of investigating, preventing, and battling immigration fraud. FDNS also serves as the medium for information sharing with Immigration Customs and Enforcement (ICE) and other government agencies. Funded by the H1B and L Petition “fraud fees”, this effort was designed to ensure immigration benefits are not being granted to individuals who threaten our public safety and/or national security. Prior to the initiation of the recent H1B assessment program, FDNS conducted R-1, L-1, and EB-1-3 Multi-National Manager and Executive assessments (including site visits) to confirm information presented in pending and approved immigration petitions. The results of these earlier assessments have been utilized to create a database identifying trends that may suggest fraud.
How Many Investigations is FDNS Conducting?
The Vermont Service Center has transferred 20,000 cases to USCIS’ Office of (FDNS). It appears the California Service Center has transferred a similar amount as well. These numbers do not include the cases referred to FDNS based on the standard profile worksheet, completed as part of the routine H1B adjudication process. Thus, it is likely FDNS officers will be making (employer/client/end user) visits in large numbers in the near future.
What Happens When FDNS Visits Your Site and What are They Looking For?
The estimated 650 FDNS immigration officers, Analysts and Intelligence Research Specialists, along with the numerous contracted private investigation firms conduct site visits. FDNS may visit an H1B employer’s principal place of business or client site as listed on the Form I-129, unannounced. These site visits last approximately 1 hour or less on average.
Even if more than one H1B petition has been filed by the employer, FDNS officers typically verify information provided in a specific immigration petition during H1B site visits. It is common for H1B site visits to occur after petition adjudication, however, it is not unheard of for site visits to occur prior to petition adjudication. This is most commonly seen with H1B extension applications with the same H1B employer.
During these site visits, FDNS officers verify this information by meeting with the signatory on the Form I-129 and/or other employer representatives. Note, FDNS officers may attempt to confirm the signature on the I-129 is genuine. FDNS officers typically seek information including but not limited to:
-The employer’s business, locations, and quantity of employees
-Company financial documents such as tax returns, evidence demonstrating the company is a bona fide business and quarterly wage reports
-The H1B applicant or holder’s job duties, location, salary (reviewing W-2s and recent pay stubs) and title
-Inquiries regarding an employer’s immigration counsel
-Employer’s previous H1B employee history
Upon the conclusion of the officer’s discussion with the employer’s representative, the officer may tour and possibly photograph the employer’s place of business or work site. Thereafter, the officer typically requests to meet with the H1B beneficiary asking questions relating to the beneficiary’s job, title, duties, employment dates, locations, job requirements, education, job history, current address, and information pertaining to dependents. As further confirmation thereof, the officer may request to speak with the beneficiary’s colleagues and/or managers.
Does USCIS Need a Subpoena to Enter My Facility?
USCIS takes the position that FDNS does not need a subpoena to conduct the site visits given certain USCIS regulations. Please refer to the current Form I-129 which contains language over viewing USCIS’ Compliance Review and Monitoring Methods. Specifically, refer to Form I-129 Instructions, p. 15, 26, and 23 “Verification of Evidence” and “Compliance Review and Monitoring” located at: http://www.uscis.gov/USCIS/Services%20&%20Benefits/Immigration%20Forms/i-129instr.pdf In these sections, it is noted that verification methods include public records evaluation; contact via electronic or written correspondence, telephone, or facsimile; interviews; and unannounced site visits at the places of employment. Form I-129 Instructions also indicate USCIS will permit employers to respond to any adverse information yielded from such site visits after USCIS has initiated an adverse action and/or made a formal decision that can result in the revocation/denial of a petition. FDNS has also informed that an employer can obtain such information via FOIA if it is not provided by USCIS when the adverse action is taken.
Note, USCIS also takes the position that an employer’s submission of the petition constitutes an informed waiver of Fourth Amendment rights. This has not been tested to date, nevertheless, those who are responsible for the inflow of persons to and from a place of business (i.e. receptionists) should be advised of company policy to not allow unauthorized persons into private areas of business without consent from company representatives. In circumstances where FDNS agents enter a place of business for an investigation, the company representatives should possess a working knowledge of the H1B immigration applications filed by the employer.
Additional Information Counsel, Employers and Employees Should Know Prior to an FDNS Site Inspection/How You Can Prepare:
Obtain written informed confirmation. Counsel should routinely obtain written confirmation that the H1B Petitioner has reviewed the petition in its entirety and verified the accuracy of the information regarding the employer’s sponsorship eligibility, beneficiary’s eligibility for the benefit, job nature, terms and conditions of the employment specified, and supporting documents before the Petition is executed and filed. If the employer or the employer’s representative cannot confirm such information, Counsel should suggest further review to ensure submissions are genuine and accurate prior to executing and filing the petition.
Correct the record, withdraw petition, or withdraw representation if material facts are found to be incorrect. If at any point Counsel becomes aware that material facts in the petition or supporting documentation are inaccurate or not genuine, Counsel must advise employer of the need to file an amendment such that the record can be corrected and/or the petition can be withdrawn in compliance with H1B regulations. If an employer does not follow through with said recommendations, Counsel should immediately withdraw his or her representation with respect to the petition harboring fraudulent representations (and) otherwise terminate legal representation of the employer as a client.
Maintain Confidential Files with I-120 petitions and supporting documents. Counsel should advise employers to maintain a confidential file containing I-129 petitions and supporting documentation. Prior to meeting with an FDNS officer, the designated official maintaining this file should review the file. It may also be wise to host a mock visit under Counsel supervision. Nonetheless Counsel should be cognizant that they are not “coaching,” but merely better preparing designated officials if such an occasion arises. Counsel should also have a representative present to take notes in the event it is later suggested that Counsel did in fact coach the witnesses. Counsel should also inform clients that it could be beneficial to give a redacted copy of the I-129 petition and supporting documents to the beneficiary. A mock session with the beneficiary may also be advisable, however, once again Counsel should pay heed to the “coaching” warning above. Note, recent site inspections have demonstrated that FDNS officers are not requesting to review LCA Public Access files. Nonetheless, employers should always be prepared.
Inform the End Users. In cases where an H1B employee is placed at a client site (that is not within the employer’s control), the end user should be made cognizant of the information presented in this article and generally about the recent FDNS H1B site inspections. The end user’s representatives should always be aware of the H1B employer’s identity and be cognizant of the assignment terms. It is in good practice to recommend the end user to immediately contact the Petitioner at the initiation of an FDNS site visit. If possible, Petitioner should send a representative in person or via phone.
Inform Counsel immediately if FDNS visits your site. While employers can request their immigration attorney to be present during the visit, FDNS officers normally do not reschedule visits. FDNS has informed that it is permissible to have immigration counsel available via phone during the site visit. Petitioner’s Counsel should be informed of the visit before any interviews at the place of employment take place. If possible, Counsel should be present in person or by phone. Note, Counsel should not voluntarily attest to the veracity of a petition’s information unless Counsel in fact has personal knowledge of the facts in question.
Obtain identifying information for FDNS officers and Have a Witness Present. If FDNS (or other immigration) officials enter an employer’s place of business the employer should be advised to obtain the name, title and contact information for the FDNS individuals for follow-up purposes. Note, other immigration officials may audit your place of business to including but not limited to ICE, USCIS’ national Threat Assessment Unit, and the Department of Labor’s Wage and Hour Division. It is also in good practice for employer’s to request business cards and confirm the individual’s identity prior to divulging any information. It is advisable that a client should not divulge information to government agents/contractors if a witness is not present. The witness and person interviewed should meet with Counsel immediately after their communication with the government agents/contractors if Counsel is not present. It is good practice to recommend the person being interviewed and the respective witness to take notes during the interview, marking their notes as “Privileged and Confidential/Prepared at the Direction of Counsel.” These notes should be provided to Counsel immediately thereafter.
Inform FDNS of secure areas and memorialize all places visited by FDNS during visit. While employers/end users should comply with FDNS’ reasonable requests, if there exist secure areas that are off limits to the public, employers/end users should inform FDNS of the nature of such areas and request interviews take place in other areas. In addition to witnesses being present during interviews of company officials, a company representative (or Counsel) should request to accompany FDNS officers during tours of the facility. Note, FDNS can deny this request. If this request is denied, the employer should take notes of the request, the information requested/provided (verbal or on paper), the locations visited, pictures taken, etc.
Do not guess! If during an FDNS interview, an employer is not able to provide accurate information without additional investigation, the employer’s representative should inform the FDNS officer. An employer should not speculate or guess when giving information to FDNS. Rather, the employer should request the ability to follow up on the particular questions.
Adverse information obtained from visits can lead to consequences. Employers should be cognizant that adverse information obtained from a FDNS visit can be utilized to deny or revoke a petition. Furthermore, information collected from such visits can be referred to other Government organizations such as ICE which in turn can possibly lead to civil/criminal penalties and prosecution.