H-1B Work Site Visits Expected To Increase: What Employers Need To Know

by Fox Rothschild LLP

Fox Rothschild LLP

On October 20, 2017, the Department of Homeland Security Office of the Inspector General issued Report OIG-18-03, “USCIS Needs a Better Approach to Verify H-1B Visa Participants”, targeting fraud in immigration processes, with particular attention to the H-1B visa. The report comes with the proposed hiring of thousands on new Fraud Detection officers.

In the report, the Office of the Inspector General made recommendations to USCIS with the goal of improving the agency’s already-existing Administrative Site Visit and Verification Program (H-1B ASVVP) and its targeted site visits. If implemented, the recommendations would result in a greater number of site visits, among other things.

We anticipate that site visits will increase, which means that your company must be prepared to confirm the details of your employment of foreign workers.

Note that this increased fraud detection and reduction initiative is in addition to Form I-9 Employment Verification inspections and Public Access File/Form ETA 9035 Labor Condition Application inspections.

What is the Purpose of the H-1B Site Visits?

The purpose of the site visits is to determine if the H-1B employer’s representations concerning the worker, worker’s location, work duties and compensation are accurate. Essentially, the inquiry is whether the employment circumstances are consistent with the information presented to USCIS in the approved H-1B petition.

What Happens During an H-1B Site Visit?

During an H-1B site visit, officers from USCIS FDNS and/or the U.S. Department of Labor Officer will typically show up unannounced at the employer’s place of business seeking to speak with the H-1B worker. Assuming the worker is in at the time, they will ask as to the nature of the work being performed, job duties and job title, compensation, locations where the work is being performed, the worker’s immigration and academic history and the like.

The officer may also ask about other workers and company policies and may ask about some topics which go beyond their authority. They will likely ask to speak to the person or representative in the company who signed the H-1B petition, to secure pay records for the individual, and perhaps other information relevant to the representations and obligations of the H-1B petition, including the form ETA 9035 Labor Condition Application and its required the Public Access File.

The information given is an attestation to any of the agencies that are involved in the site visit and may include USCIS and USDOL. For J-1-waivered physicians, the U.S. Department of State may also reach out to confirm details of a physician’s employment.

How Can You be Prepared?

Employers need to be aware of the possibility of a site visit and have a plan in place. Relevant staff should understand that a site visit is a normal part of engaging non-citizen workers. Basics preparatory steps should be taken to identify key personnel, make sure required documentation is in place and be familiar with the content of the approved H-1B petition. Those involved should also understand that the scope of the officer’s site visit is not unlimited and be aware of the parameters.

Note that site visits may also be conducted with regard to foreign workers in statuses other than H-1B, but for now the expanded focus is on H-1B workers.

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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.

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