By Min Kim
United States Citizenship and Immigration Services (USCIS) has a specific division called Fraud Detection and National Security (FDNS) that conducts unannounced inspections of a foreign national employee’s worksite, based on their immigration petition. USCIS conducts these surprise inspections to verify that the job-related information provided by the employer in the petition remains accurate. The inspections also ensure that the sponsored foreign national employee is compliant with the approved petition’s terms.
FDNS site visits are not new – the agency has been conducting them for many years. However, with the new Administration’s focus on enforcement and immigration compliance, USCIS has continued to expand the program. The frequency of such FDNS site visits and inspections have only increased in recent months. Currently, the agency primarily targets two nonimmigrant visa categories for these site visits: (i) H-1Bs for specialty occupation workers and (ii) L-1s for intracompany transferees. However, the Trump Administration has made it clear that it intends to expand the program to include or emphasize:
- All other nonimmigrant visa categories
- Specific H-1B employers: (a) that are classified as H-1B dependent; (b) that place employees at third-party worksites; or (c) whose businesses cannot be verified through publicly available information
As USCIS’s site visit program becomes more robust, employers of H-1B and L-1 workers should be aware that nowadays the agency might conduct a site visit even before an underlying petition filed on behalf of a sponsored employee is adjudicated. In the past, the agency typically restricted FDNS site visits to approved petitions. However, that is no longer the case as a site visit might now be a requisite step that the agency takes in issuing a decision on a filed immigration benefit petition for a foreign national worker.
The potential adverse consequences of an FDNS site visit are severe. If the inspecting officer is not satisfied with the outcome of the site visit, they may recommend that an already approved H-1B or L-1 be revoked. Moreover, if the FDNS officer suspects some form of fraud related to the circumstances of the foreign national’s employment, a revocation notice with a finding of fraud might be issued, which results in a black mark against the petitioning organization. A revoked petition also leaves the employee scrambling to find an alternative solution to continue to stay and work in the US.
Employers should contact an experienced attorney to train for potential site visits before they happen. Additionally, some FDNS officers may be willing to have counsel constructively present by teleconference while a site visit is taking place. Whether such a formal appearance by counsel is permitted or not, employers are highly encouraged to reach out to their individual Chugh, LLP attorney or legal representative whenever an unannounced site visit occurs at either their business premises or the third-party end client worksite.