US Citizenship and Immigration Services (USCIS) empowers its Fraud Detection and National Security (FDNS) officers to make unannounced site visits to employers of H-1B and L-1 workers. The stated purpose of these site visits is to ensure the employers and employees in these visa situations are complying with the applicable laws and rules that govern the visa category.
The inspectors conducting these site visits are supposed to limit their inquiries to the facts that relate to the particular visa petition under review. Certainly it is legitimate to check on the existence of the employer and to determine whether the beneficiary of the visa petition is employed in the position described in the petition, at the worksite location identified in the petition, and at (or above) the salary promised in the petition.
But a site visit is not an excuse for an immigration inspector to engage in a fishing expedition or to treat the employer and/or visa beneficiary in a manner that is anything less than civil. Unfortunately, as site inspectors fan out around the country to conduct these site visits, evidence is growing that a subset of the inspectors are using the site visits as an excuse to ask impermissible questions, particularly of the employers in these situations. For example, companies report that inspectors have asked them how many green card holders they employ. This is an inappropriate question. It implies that the employer may lawfully ask the employee to prove his or her status as a green card holder when in fact, under most circumstances, it is not. Asking this question in a site visit is improper for two reasons: it is clearly beyond the scope of the facts relating to a single visa petition, and it could lead an unwitting employer to engage in actionable discriminatory behavior. While the employment laws require that employers confirm through the I-9 process that an employee is authorized to work in the US, it is up to the employee to decide which of the documents listed on the I-9 they use for this purpose and US employers generally may not ask if their employees if they are green card holders. (There is a limited exception for employers whose work requires employees to hold a national security clearance). And most employers’ records will not contain this information. Even if someone had a green card when he or she was hired, whether or not that person is still a green card holder or has since become a naturalized US citizen is none of the employer’s business.
Similarly, reports have surfaced of site visits where inspectors were less than civil in their tone and their questions posed to employers, particularly smaller, start-up companies. This is simply unacceptable. Many new businesses petitioning for an L-1 or H-1B worker face inappropriate hostility from the government – instead of having their petitions approved, they are besieged by unduly burdensome, repetitive requests for information, much of which was initially submitted to the government and conveniently overlooked or ignored by USCIS. By the time USCIS grudgingly approves the visa petition, the company and its visa beneficiary often feel that they have been subject to such unduly heavy scrutiny that it borders on harassment. It only adds insult to injury to follow the visa approval with a site visit where the inspector is not courteous.
There is nothing wrong with conducting site visits to check the facts: let’s keep the visits to that please.