USCIS Rolls Out Full-Scale Implementation of L-1 Site Visit Program: Employers of L-1 Transferees Should Now Set up Processes to Prepare for Such Visits

by Mintz Levin - Immigration Law
Contact

U.S. Citizenship and Immigration Services’ (USCIS) Fraud Detection and National Security (FDNS) Directorate has recently begun implementation of an L-1 site inspection program in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) titled “Implementation of L-1 Visa Regulations.” The report is available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-107_Aug13.pdf. The L-1 site visit program is funded by the $500 Fraud Fee required for the initial filing of all L-1 petitions.

The OIG report was issued in response to concerns over fraud and abuse in the L-1 visa program, and in particular the new L-1 office petitions and L-1 extensions. The OIG strongly recommended that USCIS make site visits a mandatory requirement before renewing L-1 new office petitions. In response to the OIG report, USCIS has started conducting post adjudication domestic L-1 compliance site visits and expects to expand these visits to all individual L-1 petitions.

At this time, site visits will not apply to L-1 blanket petitions or beneficiaries as USCIS currently has no mechanism to identify L-1 admittees under the L-1 blanket program. However, if your company has filed an L-1 extension petition on behalf of an employee who initially came to the U.S. pursuant to an L-1 blanket petition, be prepared that you may have a site visit relating to that employee.

How Are Site Inspections Chosen?

USCIS has indicated that it is going to start its L-1 site visits by performing post-adjudication approval site visits of L-1A petition extensions that were filed with a USCIS Service Center. It is unclear at this time when and if the L-1 site visit program will be expanded to include L-1B and blanket L-1 petitions. The site inspections are generally chosen at random, and performed without notice. The site inspectors are not authorized to make decisions on immigration benefit petitions or applications. However, if the site inspector has a concern, he or she will inform the agency about the concern, which could result in further communication by USCIS regarding the particular case.

Who Comes Calling on Behalf of the USCIS?

The site visits are conducted either by 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 you experience a site visit, the first step is to politely request to see the representative’s identification to verify the legitimacy of the visit.

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 USCIS site inspector and company representative, in which case there is time to arrange for counsel to be present in person or by phone. More frequently, the site inspector arrives without warning.

As site visits are frequently unannounced, employers should educate their receptionists at all worksites about the possibility of USCIS site visits and should have a procedure in place to contact the employer’s primary in-house immigration manager. Once the designated company representative greets the site inspector and ascertains the purpose of the visit and which employee he or she is checking on, there should be time to make the site inspector comfortable in a waiting area or conference room while you contact counsel and obtain the relevant file(s).

What Is the Government’s Objective in Conducting Site Visits?

Typically, the site inspector needs to confirm that the employer is a bona fide organization that knowingly filed the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition. Typically, the site inspector is there to:

  • Verify the existence of the petitioning U.S. employer
  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS
  • Verify the identity of the foreign worker employee
  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS and review personnel documents such as payroll records
  • Confirm the foreign worker employee’s work location, employment workspace, hours, salary and duties
  • Speak directly with the L-1 employee as well as with the company representative

What Questions Will the USCIS Site Inspector Ask?

In most instances, the investigator will arrive with a copy of the petition and ask to meet with the company representative who signed the visa petition. (Often the person who signed the immigration paperwork is not available in person at the worksite in question. If this is the case, the task should be delegated to the designated company representative for that worksite. The company representative who signed the paperwork can participate by phone, if convenient.) The inspector will ask for basic information about the employer, such as the year of incorporation, locations of its offices, number of employees, and hours of operation. He or she will ask about the employee’s title, job duties, and worksite and ask to see the office or cubicle where the employee works. He or she may also ask to be allowed to take photographs of the interior of the worksite. The inspector may also ask for the most recent pay statement and last W-2 issued to the employee to confirm that the employee is being paid the rate of pay promised in the petition of hire.

Employers of L-1 visa holders may face additional challenges as an L-1 visa holder is permitted to and may only work intermittently in the U.S., may be on a foreign payroll, may be assigned to a client (third-party) site, or may have changed work locations to another branch office of the L-1 petitioner. The employer must be able to articulate and explain to the satisfaction of the site inspector that these situations are permitted by the L-1 regulations. These site visits can be nerve-racking and cause anxiety to L-1 employees and to the company employees who are confronted with an unannounced site visit. Having a clear policy in place to deal with future site visits goes a long way towards alleviating such anxiety.

One of the most challenging aspects of the L-1 site visit is verifying that the L-1 employee is “working for the employer in the position that was the subject of the visa petition.” As we know, titles and job responsibilities for employees are constantly changing as business conditions are constantly changing. Employers must file amended L-1 petitions whenever there is a significant and material change in the L-1 employee’s job duties. In the event of an L-1 site visit, if the employee’s job has changed, the company representative must be able to explain why a change in job title and job duties was permissible without the filing of an amended L-1 petition or be prepared to provide a copy of the amended L-1 visa petition.

Update for I-9 and E-Verify Compliance and Inspections for Intermittent Employees Remaining on the Foreign Payroll

In addition to the site visits that USCIS is conducting to verify the information contained in visa petitions filed by employers on behalf of their foreign workers, the Immigration and Customs Enforcement (ICE) division of DHS conducts targeted inspections of employers’ Form I-9 records. Indeed, in 2013, ICE issued Notices of Inspection (NOIs) to 3,100 businesses across the U.S. The number of ICE I-9 inspections has tripled in a 3-year period, and all signs point to a continuing increase of I-9 inspections.

As ICE said in the announcement it made regarding this initiative, “Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws.” ICE is committed to inspecting Forms I-9 to ensure that employers are in compliance with their I-9 obligations and that their employees are authorized to work in the U.S.

I-9 inspections are typically targeted as a result of leads and tips. When an employer receives an NOI, it usually has only three days' advance notice to prepare for the inspection, or less if ICE presents a search warrant. It is critical that employers routinely conduct internal I-9 self-audits and engage in regular and systematic training of personnel with responsibility for I-9s to ensure that their I-9s are in order.

Mintz Levin is available to conduct I-9 audits and training at your offices and through webinars, which can reach all employees responsible for I-9 compliance throughout a multi-office organization.

Be Prepared

USCIS site visits and investigations frequently come without warning, and non-compliant employers are subject to serious fines and penalties. Accordingly, it is critical that your immigration files are in order and that you are prepared ahead of time:

  • Ensure that your company has a designated point-of-contact in the event of a site visit, and a back-up person to assume this function if the designated person is out of the office on the day of the visit, and ensure that the staff are aware of who the contact persons are, and what the company protocol is, for escalating the site visit information to the appropriate company representatives.
  • Ensure that your immigration files are in good order, including (1) copies of all visa petitions and approval notices; (2) up-to-date personnel records showing work location and salaries; (3) H-1B Public Inspection Files; and (4) I-9s. These files and electronic systems should be reviewed and updated annually. Mintz Levin can assist with the audit of your files.
  • Contact your Mintz Levin attorney immediately if you receive any communication about a visit or inspection from DHS.
  • Ensure that you check with your Mintz Levin immigration attorney if you anticipate making any changes to a sponsored foreign national’s position, job location, or wages. In some cases, amended visa petitions must be filed or labor condition application notices must be posted at new worksite locations to keep your company in compliance.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mintz Levin - Immigration Law | Attorney Advertising

Written by:

Mintz Levin - Immigration Law
Contact
more
less

Mintz Levin - Immigration Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.