Originally published in Nashville Business Journal January 20, 2012

Imagine for a moment that your business recently filed an H-1B petition on behalf of a foreign worker named John Doe. After the H-1B petition is approved, you receive an unannounced visit from a fraud investigator with the Office of Fraud Detection and National Security. The investigator asks to speak with the company representative who signed the H-1B petition. The investigator requests company information, such as the date your company was established, the number of employees and your company's revenue. The investigator also asks to speak with John Doe and his supervisor and requests a tour of your facility. Lastly, the investigator asks to review your quarterly wage reports, payroll records or other evidence to demonstrate that you have a bona fide business.

So who is knocking on your door? And why are they demanding all this information? Through its use of the Fraud Prevention and Detection fee, U.S. Citizenship and Immigration Services has engaged outside contractors to conduct site visits to the worksites of employers who sponsor foreign workers. The Office of Fraud Detection and National Security was created in 2004, in part, to detect, deter and combat immigration benefit fraud. The FDNS previously conducted on-site fraud inspections in the L-1 and R-1 programs.

Since 2010, the FDNS has added more staff and expanded its on-site fraud inspections in earnest, focusing specifically on businesses that sponsor foreign workers under the H-1B program. This has resulted in thousands of worksite fraud investigations and the revocation of hundreds of H-1B petitions every year.

The purpose of the on-site fraud inspections is to verify the existence of the employer, confirm the validity of the information provided in the petition and to determine whether the worker is working in compliance with the terms and conditions of the H-1B status.

FDNS inspectors do not need a subpoena to conduct a site visit because the regulations governing the filing of H-1B petitions allow the government to conduct broad investigations relating to immigration petitions, including unannounced site inspections of residences and places of employment.

During a typical on-site fraud inspection, the FDNS inspector may:

  • request to speak with the H-1B employee;
  • request to speak with the employer representative who signed the petition;
  • request information about the company, such as the nature of the business, gross/net income, number of employees and date employer was established;
  • request employer's tax returns, quarterly reports and payroll records;
  • request a copy of the H-1B employee's pay stubs and W-2;
  • request information about the employee's job title, job duties, salary, work location(s), dates of employment, job requirements and academic credentials;
  • request information about the number of H-1B petitions previously filed by the employer;
  • request a tour of the employer's facilities and take photographs;
  • request to speak with the H-1B employee's colleagues and managers.

By developing and maintaining a robust compliance strategy, employers can better anticipate risks, manage them and avoid costly and expensive interruptions to their operations as a result of a government inspection. When faced with an on-site fraud inspection, employers should consider doing the following:

  • notify counsel of a site visit;
  • make sure personnel responsible for greeting visitors are advised that it is company policy not to admit unauthorized visitors to private areas of the business without the approval of a designated company representative;
  • make sure you request the name, title and contact information of the fraud inspector and confirm his or her credentials;
  • speak with the fraud inspector in the presence of a witness;
  • retain complete copies of H-1B petitions and have this documentation available during a site visit;
  • provide the H-1B employee with a redacted copy of the H-1B petition so he or she is familiar with the information submitted to USCIS on his or her behalf;
  • request additional time to retrieve any information requested by the fraud inspector if you are unsure about the answer or the requested information is not readily available;
  • make sure that an employer representative is present when the fraud inspector inspects the premises;
  • make sure that an employer representative is present when the fraud inspector interviews company employees, including the H-1B employee;
  • take detailed notes of any information requested by and provided to the fraud inspector;
  • make photocopies of any photographs taken by the fraud inspector or documents requested;

As USCIS increases its enforcement initiatives, employers that sponsor foreign workers under the H-1B program should be prepared to handle unannounced visits from USCIS' fraud unit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.