- Trump Administration Moves to Increase H-1B Employer Site
- January 24, 2018 | Author: Alexandra Michailov
- Law Firm: Shulman, Rogers, Gandal, Pordy & Ecker, P.A. - Potomac Office
U.S. employers should be aware that the U.S. Citizenship and Immigration Services (USCIS) and other federal agencies have the legal right to make unannounced site visits to monitor and detect fraud among H-1B petitioners and their H-1B employees.
Although USCIS has been conducting random site visits since 2009, the Trump Administration has now directed USCIS to specifically target H-1B companies with 15% or more of their U.S. workforce under H-1B status. Employers that have H-1B employees who work offsite at another company will also be subject to these increased site visits, as will companies that do not have readily available information about their business online.
In most cases, the purpose of such visits is simply to verify whether the employer is in compliance with the terms and conditions stated in the H-1B petition. An investigator will normally ask to meet with the signer of the H-1B petition or other employees the investigator believes to be an appropriate company representative. In some cases, they may also want to meet with the employee sponsored in the H-1B petition to verify their position, requirements of the position, salary, start date and work location.
What specific information could the inspection officer request to verify during an unannounced site visit? How should employers prepare and mitigate risks in advance?
Information to be Verified
First of all, site visits should not be considered a "surprise" as long as companies make good preparations ahead of time. In general, the inspection officer will interview and verify the information about the company as the sponsor of H-1B visa application as well as the specific H-1B employee, the beneficiary, to make sure that both of them are in compliance with applicable laws.
From companies, the officer may request the following information:
- Locations, number of employees and number of H-1B petitions previously filed to verify compliance with the filing record previously submitted to USCIS;
- Copies of the company’s tax returns and other company documents to verify that it is a bona fide business;
- Payroll records and perhaps other evidence related to the basic facts of the employment. In addition, the officer may also request the H-1B employee’s most recent pay stub and last Form W-2; and
- Confirmation that the signature on the H-1B petition is genuine. Further, the officer may wish to speak to the employer’s representative who signed the petition and speak to the company representative to learn more about the company's business and compliance practices.
Regarding individual H-1B employees, the officer may wish to verify the following information:
- Job title, duties and responsibilities, employment dates and location of work;
- Position requirements;
- Academic background;
- Previous employment experience; and
- Current address of employment.
This is especially important for third-party placements petitioners, who often move their H-1B employees from site to site. Employers who place H-1B employees at customer or client sites should alert their customers and clients of the possibility of site visits. Organizations that rely on placement companies or IT consulting companies to provide specialized knowledge employees should request the placement companies or IT consulting companies provide the information needed if a site visit is initiated at its facility as the work site.
The Best Defense Is To Be Prepared
In light of possible site visits, it is now more important than ever for businesses to make sure that they have an effective immigration compliance plan. This includes, at a minimum, taking the following steps:
- Establish a policy for handling such visits, ensuring ahead of time that all relevant immigration and human resource records are up to date and easily accessible;
- Make your H-1B employees aware of the possibility of such visits and review their duties, responsibilities and position requirements as presented in an H-1B petition;
- Make reception fully aware of the possibility of such visits and ensure that they know which responsible person should be notified immediately upon the arrival of inspectors;
- Ask if your immigration attorney can be present during the interview. While inspectors will not reschedule a meeting, they will often allow for immigration attorneys to be present by phone; and
- Know that you are not required to give inspectors any information about your business not relating to H-1B petitions. Accordingly, have specific information and paperwork readily available for the investigator, rather than allowing them full access to an employee’s personnel file and your business’s payroll records.