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The Administrative Site Visit and Verification Program

The Administrative Site Visit and Verification Program was implemented in July of 2009 by the U.S. Department of Homeland Security (DHS), Citizenship and Immigration Service in an attempt to detect fraud in the immigration application benefit process. In short, it authorizes FDNS (Fraud Detection and National Security) Officers to make unannounced site visits to the employer worksite in order to determine, among other things, whether the facts supplied in an approved immigration application are true and accurate. The site visit is composed of a “compliance review” which includes: Document review, physical inspection of the workplace (which may include taking photographs), and interviews with HR personnel and the sponsored foreign national employee. In some cases, FDNS will call ahead, while in other cases, an Officer may simply show up unannounced.

There are three types of Administrative Site Visits, as follows:

1. Random Compliance Reviews: Employers’ are randomly selected for site visits involving no probable cause for any type of wrong doing. Site visits for H-1B and L-1 petitions occur post adjudication, i.e., after the petition has been approved to ensure the integrity of the immigration benefits system.
   
   
2. Targeted Site Visits: Occur where there is probable cause to believe there is an irregularity in the application process.
   
   
3. Benefit Fraud Compliance Assessment: Not currently active as of the date of this writing.
   
   

FDNS (Fraud Detection National Security) Officers are authorized to conduct site visits based on DHS’ right to verify an H-1B beneficiary’s eligibility consistent with statutes and regulations. The authority also comes from an employer attestation (signature) on the Form I-129, Application for a Nonimmigrant Worker, Part 7 which is signed by the Employer (usually an HR Representative) and provides: “I certify, under penalty of perjury that this petition and the evidence submitted with it are true and correct to the best of my knowledge. I authorize the release of any information from my records, or from the petitioning organization’s records that U.S. Citizenship and Immigration Services needs to determine eligibility for the benefit being sought. I recognize the authority of USCIS to conduct audits of this petition using publicly available open source information. I also recognize that supporting evidence may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.”

Most site visits are random and routine and are no cause for panic. Should you receive a site visit, you should follow the following procedures

1. Ask to see identification and credentials from the FDNS Officer conducting the site visit. Write down his or her ID number and ask for a business card.
   
   
2. You may request participation by legal counsel via phone. Please note that rescheduling may not be accommodated to allow for physical presence of counsel.
   
   
3. An Employer has the right to know which type of site visit is being conducted, i.e., random versus targeted.
   
   
4. The FDNS Officer should be supervised at all times while on premises. Keep copious notes, including questions asked and responses.
   
   
5. The scope of the site visit must focus on the particular H-1B (or L-1) petition at issue, i.e., the site visit does not give the government the right to investigate any other aspect of the company.
   
   
6. Although the site visit is voluntary, we recommend compliance, as noncompliance could result in the issuance of a “notice to revoke” the H-1B petition.
   
   

The types of documents requested may consist of the following: W-2 records, pay records, educational credentials, LCA (Labor Condition Application) postings, Public Access Files, H-1B withdrawal notices for terminated employees, etc... For a complete list, please contact an attorney at Madison | Piper PC.

For employers with multiple worksites, know where your employees are located. Establish a protocol in advance to prepare for site visits, including preparing front desk personnel. Always verify credentials of the FDNS Officer and obtain a copy of his/her business card. Please remember that multiple worksites can be subject to site visits, while the same location may be subject to repeat site visits.

In 2014, the Administrative Site Visit Program was expanded to include the L-1 category. Such expansion of the program resulted from alleged misuse of the L-1 program as reported in an August 2013 Report from the Office of Inspector General’s office. As the L-1 Site Visit Program is relatively new, there is not yet a defined structure, as is the case with the H-1B Site Visit Program. Anecdotal information reflects that FDNS Officers have, in some cases, provided employers’ with 2 days to respond to written requests for information and documentation, including up to 100 potential questions.

FDNS Officers record their findings on a Compliance Review Report which becomes part of the official government record. If there are any fraud indicators, the USCIS will determine whether further investigation is required. In situations involving fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE). Most administrative site visits are relatively straightforward and lead to a final finding of compliance. Should you receive any indication or correspondence to the contrary, please contact your immigration counsel without delay.

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