NOVEMBER 2016
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Immigration

H-1B, L-1 and R-1 Government Site Visits — What to Expect and What to Do

Dilip Patel

By DILIP PATEL

U.S. Citizenship and Immigration Services (USCIS) began its Administrative Site Visit and Verification Program in 2009. Under the program, site visits are conducted by its Fraud Detection and National Security Directorate (FDNS). FDNS conducts site visits for religious worker (R-1) petitions, H-1B petitions, and, since 2014, L-1 petitions.

An employer that signs Form I-129 agrees that “any supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” FDNS site visits are voluntary, but it is strongly recommended that employers cooperate should one occur. Employers should also be advised to contact their immigration attorney immediately should an FDNS investigation take place. Though most site visits are unannounced, and FDNS will not reschedule a visit to accommodate counsel, counsel is permitted to be present if logistically possible and might be permitted to participate via telephone.

What Happens During a FDNS Site Visit?

When an FDNS inspector appears at the employer premises, he or she will likely ask to speak with the human resources manager or the company official who signed the H-1B petition. During an FDNS site visit, the inspector is typically charged with verifying the existence of the employer, the validity of the information the employer provided in the petition, and whether the foreign national is working in compliance with the terms of the approval. FDNS may ask to take photographs of the facility to verify its existence, and interview the beneficiary, and supervisors or other personnel to confirm the details of the beneficiary’s physical work area, hours, salary, and duties. Site visits typically take less than one hour and often take significantly less time. The inspectors may also ask for pay stubs or W-2s and may ask questions regarding the rate of pay, title, and job duties in order to compare that information with the information reflected in the petition and supporting letter. If an FDNS investigator asks questions that are beyond the scope of the petition or would require internal research, it is okay to ask for additional time to respond. If follow-up is required, it is important that the employer quickly respond with the requested information or documentation to ensure that the “Compliance Review Report” can be completed by the inspector in a timely manner.

If at any point the employer or the employee is unwilling to continue, FDNS should end the inspection. However, the inspector will likely complete the Compliance Review Report based only on the information that was gathered before the inspection was terminated and will indicate that the interview was terminated upon request. FDNS may follow-up at a later time.

The following are some common red flags for site investigators: (1) The beneficiary’s salary in pay statements does not match the amount stated in the petition. (2) Reported income on the beneficiary’s IRS Form 1040 does not match the beneficiary’s salary, or the beneficiary reports as “self-employed.” (3) The address of the beneficiary’s work location in the petition is not an actual work site. (4) Virtual offices or empty offices without equipment are listed as the beneficiary’s place of employment. (5) The beneficiary lacks a work email or work phone number.

Are You Prepared? What an Employer Should Do

It is important that H-1B/L-1/R-1 employers have policies and procedures in place in case of an FDNS inspection. Human resource departments, staff, and company signatories should be aware of the potential for unannounced site visits and should be prepared to follow the employer’s response plan. If you don’t have a plan, make one. Make sure that everything included in the underlying petition pertaining to the company and the employee is accurate. Review and re-review the petition that was filed, if necessary. Remember, material changes to job duties, and in the case of H-1Bs, changes to work location, require amended petitions. Make sure the person who signs the petitions (and/or the assistant) knows where to find copies of the petitions quickly and review those petitions before meeting with the inspector. If there are discrepancies between pay stubs and the salary listed on the I-129 petition, be ready with a complete explanation. For example, some L-1 companies pay part of the beneficiary’s salary through the foreign employer, which is an acceptable practice.

If you are confronted with a site visit, contact your immigration lawyer immediately and see if he or she can attend the site visit. If your lawyer cannot attend, ask for and record the credentials of the inspector (name, title, and contact information) to ensure that any post-visit communications are directed toward the appropriate agent. Write down a detailed description of what happened immediately after the visit. Finally, if during the site visit, either you or your employee are unsure of an answer to a question, ask for additional time and offer to follow-up with the officer, rather than guessing.

DOL Meeting Reveals Some Big Changes on the Horizon for PERM

The DOL Office of Foreign Labor Certification (OFLC), at a meeting in May 2016, indicated that the Prevailing Wage, PERM, and H-2B Processing Centers will be undergoing some major changes. Upon recommendations from the efficiency experts at the Office of Personnel Management (OPM), OFLC will be creating new divisions, appointing new directors, and restructuring itself in hopes of creating a more seamless operational and policymaking system. In the meantime, expect processing times to lengthen and the PERM backlog to increase.

Between 2010 and 2015, the overall application load at the OFLC increased by 84 percent while funding and resources decreased by 9 percent. Despite all of the improvements, trainings, cross-trainings, and possible outsourcing to implement the OPM recommendations, OFLC does not expect to be able to maintain the current processing times, which are likely to get worse in the near future. Furthermore, the filing fee provisions that are being considered will not be functional for several years because OFLC does not have a system to collect and distribute fees. We applaud OFLC’s honesty in admitting these realities, if nothing else.

As to the substantive developments about PERM filings, it is important to note that OFLC is continuing to ignore SOC (standard occupational classification) guidance with regard to jobs that have cross-occupational duties. When a prevailing wage is submitted that includes duties from two separate occupations (like management analyst and market research analyst), the adjudicating officer will simply choose the occupation with the higher wage and add a point to the wage level. Skill level, corresponding job zone, and time spent on each duty are completely ignored. Why? OFLC did not provide a substantive answer. The one piece of good news came from OFLC’s consideration of State Workforce Agencies that refer to the potential applicants who never actually apply or show any interest in the job. OFLC did state that the employer is only required to consider applicants; referrals are not applicants for PERM purposes.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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