Participation in USCIS site visits is now mandatory. These site visits include employer’s offices, client sites, and even remote workers’ homes. If employers don’t cooperate, H-1Bs can be denied or revoked, meaning if an officer from US Citizenship and Immigration Services (USCIS) shows up at your door, you will need to co-operate with them, or risk having your own or your employee’s H-1B revoked or denied.
The reality is that most employers and employees have co-operated with USCIS most of the time, however under the previous rules participating in a site visit was voluntary.
With a new administration comes new policies and the fear is that the Trump administration will conduct more site visits to revoke or deny petitions. While this is possible it also comes down to the question of funding.
Why does USCIS conduct site visits
Site visits are conducted by the Fraud Detection and National Security Directorate (FDNS) and are conducted to ensure that employers and employees are complying with the rules and regulations that govern the H-1B program. Employers are randomly selected for site visits.
Which locations will site visits be conducted at?
Under the new rule, USCIS is authorized to conduct site visits at the petitioner’s worksite, neutral locations, and other places where H-1B work will be performed, including third-party customer locations. This also includes the private residence of the H-1B beneficiary if H-1B work is remotely performed in the home.
Will I get prior notice of a site visit?
No. Most site visits are unannounced, however if no one is there to meet with the officer the officer will often e-mail the employer, employee and sometimes the end client to verify the facts stated in the petition.
What are the consequences of refusing to comply with site visit?
If USCIS is unable to verify facts, including situations in which the petitioner or a third party refused or declined to cooperate in an inspection, USCIS is authorized to deny or revoke any petition for H-1B workers performing services at these locations. Failure to comply with inspection requirements may result in penalties or other enforcement actions.
How should I prepare for a site visit?
To effectively prepare for a site visit Employers should implement several key practices and maintain specific documentation.
- Document Retention: Employers must keep comprehensive records, and these should be stored in a location where they can be accessed quickly during a site visit. A detailed list of documents is provided below.
- Staff Awareness and Training: Inform all employees, especially frontline staff like receptionists and security personnel, about the possibility of FDNS site visits. Designate a knowledgeable point of contact within the organization, such as someone from HR or the legal department, to handle these visits.
- Verification and Communication: When a USCIS officer arrives, request and record their credentials, including their name, title, and contact information. This ensures you know where to send any follow-up information. Ask the officer to clarify the purpose of the site visit to better understand the context and requirements.
- Detailed Record-Keeping: During the site visit, take detailed notes of all discussions, questions asked, and documents requested by the officer. This will help in providing accurate follow-up information and maintaining a record of the visit.
What documents should I maintain in the event of a site visit?
All employees
- Completed I-9 and supporting documents used to verify identity and employment authorization.
- Copies of employment contracts or agreements verify terms of employment.
- Paystubs and W-2.
H-1B Employees
- Copy of submitted I-129 petition.
- Copies of all notices including receipt notice, approval notice, RFEs and NOIDS.
- Copy of RFE response (if applicable).
- Proof that the LCA was provided to the H-1B employee no later than the date he/ she starts work.
- Public Access File (PAF)* – An employer is required to make a filed Labor Condition Application (LCA) and supporting documentation available for public inspection at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with the Department of Labor (DOL).
*PAF must be kept separate from the Employee’s personal file and the above H-1B documents and will need to be maintained for one year beyond the date of employment under the LCA. PAF needs to be completed.
PAF needs to include:
o Copy of certified and signed LCA and cover pages.
o Letter providing the wage rate to be paid to the H-1B worker.
o Memorandum to Public Access File.
o Prevailing Wage from FLC Data Center and O*Net printout for SOC Code.
o LCA Posting Notice.
o Summary of Benefits offered to US workers and H-1B workers.
o A list of any entities included as part of the single employer: Where the employer utilizes the definition of “single employer,” a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status.
o In the event of corporate change: a. Sworn or notarized statement by successor entity accepting all liabilities of predecessor entity; b. List of H-1B workers transferred to successor entity; c. Each affected LCA number and effective date; d. A description of successor entity’s actual wage system; and e. Successor entity’s employer identification number.
Withdrawn LCAs– PAF needs to be maintained for one year from the withdrawal of the LCA.
Change of location within same MSA- letter in PAF documenting that original LCA was posted at new location. How can the Attorney at Patel Law Group help?
H-1B Employees who resign or are terminated.
- Copy of termination letter, including offer to pay reasonable cost of transportation back home. Alternatively, a resignation letter from employee.
- Copy of Withdrawal Request to USCIS.
- Copy of Withdrawal acknowledgement from USCIS.
CPT and Day-1 CPT
- Copy of cooperative agreements with the University.
- Copy of any CPT employer application forms.
- Copy of Offer Letter given to CPT employees.
- Copy of ALLs I-20 establishing work authorization.
- Copy of detailed training plan or description of the training provided.
F-1 OPT
- Completed Form I-9.
- Copy of executed Offer Letter.
- Copy of F-1 employee’s EAD card.
- Training records (if any).
STEM OPT
- Evidence that company is E-verified.
- Completed I-983 and all progress reports.
- Copy of Offer Letter.
- Training records.
- Copy of Employee’s EAD card.
Lawful Permanent Residents where the Employer sponsored the Employee.
- Copies of all paperwork submitted to DOL, USCIS to include ETA 9089, I-140, I-485 etc.
- Copies of all notices to include receipt notice, approval notice, RFEs and NOIDS.
- Copy of RFE response (if applicable).
PERM Audit File
- Signed recruitment report, copies of recruitment, copies of resumes and completed resume assessment sheets, interview notes, e-mails, call logs etc.
- Copy of filed or certified ETA 9089.
- Copy of Prevailing Wage Determination.
Conclusion
All employers are now subject to mandatory site inspections. Employers must ensure that all necessary documentation and compliance measures are in place and readily accessible for inspection. Failure to co-operate with FDNS could result in your employee’s H-1B being denied or revoked.
If you have questions regarding the above or wish to schedule a mock audit, please contact PLG Partner Chris Prescott at cprescott@patellegal.com.