Suppose a U.S. government agent walks through the front door of your Palo Alto start-up, and tells the first employee seen that he is there to speak with HR about the company's H-1B employee. The employee politely informs the agent that there is no HR - it's a "start-up". The agent then studies their own copy of the H-1B petition, and states he needs to speak with the person who signed it. Of course this person (founder, co-worker, Board member) is not in the office. Is your company prepared for this scenario?
The USCIS has a division called the Office of Fraud Detection and National Security (FDNS). Created in 2004, their purpose is to deter and combat immigration benefit fraud, and to assure benefits are not granted to people who threaten national security or public safety. They currently have approximately 650 staffers throughout the U.S., and have contracted with additional private investigation firms. They are now targeting the H-1B program. The Vermont Service Center has forwarded about 20,000 cases to the FDNS, and it is presumed that the California Service Center has forwarded a comparable number.
FDNS visits are typically unannounced, and occur either at the employer's principal place of business or at the H-1B employee's worksite. The purpose is to verify information contained in a particular H-1B petition. The FDNS officer will request to meet with an HR representative or with the person who signed the H-1B petition. The FDNS officer will have a copy of the petition. They will request specific information about the company, including: the employer's business, the business locations, the number of employees, the H-1B worker's job title, job duties, work location, and salary. The FDNS officer may also request to view the company's federal tax returns, quarterly wage reports, and the H-1B employee's recent pay stubs and last W-2.
The FDNS may then request a tour of the employer's facility and may take photographs. They may also request to interview the H-1B employee, and even the H-1B's manager or a colleague.
Employers should take the following steps to prepare for FDNS surprise visits:
- If there is no "HR", and if the person who signed the H-1B petition is often out of the office, designate at least one other employee to meet with the FDNS. Whoever might meet with the FDNS should know basic information about the company as included on the I-129 petition, including the nature of its business, the number of employees, the company's locations, as well as which employees are on an H-1B.
- Complete copies of all I-129 H-1B petitions and supporting documentation should be maintained in a confidential file. In the event of an FDNS visit, the designated employee can retrieve this file and review it before meeting with the officer.
- Whoever meets with the investigator should request their name, title, and contact information. Various government agencies may audit in the H-1B program, including ICE, the USCIS Department of Labor's Wage and Hour Division, and the USCIS' National Threat Assessment Unit. If the investigator indentifies himself as a USCIS FDNS contractor, request a business card with a toll free number to obtain confirmation of his credentials prior to providing information.
- During the meeting, the employer should not speak with the investigator without a witness present. However, the investigator might not permit the employer to be present when interviewing the employee. Immediately following any meeting, any person who spoke with the investigator or was present should take notes of what transpired.
- As a reminder, the H-1B employee should have been provided a copy of the H-1B petition. If the employer does not wish to reveal confidential information to the employee, the employer can provide a redacted copy of the petition to the employee. The employee should know what the H-1B petition says about their employment, in the event they are questioned by the investigator.
- Don't let the investigator wander around unaccompanied. If they request access to secure areas, the employer should explain that it is a secure area and suggest less sensitive areas to see. While an employer should try to comply with reasonable requests, they should explain if there are strict policies against tours or photographs.
- If the employee has been placed at a client site not controlled by the employer, the employer should notify the end user about current FDNS surprise visits and the possibility of such a visit.
- Employers and employees should always be truthful, and refrain from "guessing" if not sure of the answer. If the answer to a question is not known, or if particular documents cannot be located at a moment's notice, request to provide that information later by mail, e-mail, or other follow-up.
- Whether government agents or contractors require a warrant or subpoena to enter private areas of a business and conduct H-1B investigations has not been tested yet. The FDNS is taking the approach that it does not need a subpoena because USCIS regulations governing the filing of immigration petitions allow the government to conduct broad investigations relating to the petitions.
- If the employer is represented by an attorney, the employer should call right away to see if the attorney can immediately come over. If not, the employer can have the attorney on the phone.
Now is the time for employers to prepare and organize themselves for an FDNS visit. Smaller companies, without an HR department, need to organize and review their I-129 petitions and supporting documentation. If the information in the I-129 petition has changed, such as the employee's work location, the employer should contact this immigration law office or their own attorney.
The information compiled in this article was summarized from information from: AILA Infonet Doc. No. 09100123 (posted 10/01/09)