uscis site visit h1b questions

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Administrative Site Visit and Verification Program

USCIS started the Administrative Site Visit and Verification Program in July 2009 as an additional way to verify information in certain visa petitions. Under this program, immigration officers in the Fraud Detection and National Security Directorate (FDNS) make unannounced site visits to collect information as part of a compliance review.

What is a compliance review?

Immigration officers conduct compliance reviews to ensure that petitioners (employers) and beneficiaries (job applicant or other potential employee) follow the terms and conditions of their petitions. This process includes reviewing the petition and supporting documents, researching information in public records and government systems, and, where possible, interviewing the petitioner and beneficiary through unannounced site visits.

Participating in a site visit is voluntary, but strongly encouraged

Participation in the compliance review process is voluntary. FDNS immigration officers will end a site visit if a petitioner or beneficiary expresses an unwillingness to participate. When this happens, the FDNS immigration officer will complete the compliance review by using all available information and will document the circumstances of around ending the site visit.

Types of petitions subject to site visits

As of fiscal year 2019, FDNS conducts compliance-review site visits on petitions for:

Special immigrant religious workers petitions (before and after adjudication);
H-1B nonimmigrant temporary visas (after adjudication);
L-1 nonimmigrant intracompany transferee executive or manager visas (after adjudication); and
EB-5 immigrant investor program visas (before adjudication)

How USCIS chooses site visits

FDNS randomly selects petitioners for site visits after USCIS adjudicates their petitions.

Immigration officer tasks

Officers record their observations on a Compliance Review Report. Officers occasionally conduct multiple site visits if they need more information to complete a compliance review. At the site visit, the officer will:

Verify the information, including supporting documents, submitted with the petition;
Verify that the petitioning organization exists;
Review public records and information on the petitioning organization;
Conduct unannounced site visits to where the beneficiary works;
Take photographs;
Review documents;
Interview personnel to confirm the beneficiary’s work location, physical workspace, hours, salary and duties; and
Speak with the beneficiary.

How employers should prepare for a potential site visit

Before a site visit : Employers should be prepared to present any information originally submitted with the petition. The immigration officer may also may ask for more information relevant to the petition.

During the site visit : Employers should immediately provide all readily available documents and information that the immigration officer requests.

After the site visit : Employers should provide all additional information that USCIS requests in any follow-up communication.

Why some employers receive repeated site visits

Employers might receive more than one site visit if they petition for more than one beneficiary. Each compliance review focuses on one petition and beneficiary. FDNS will randomly select such employers for multiple site visits.

What happens after a site visit?

Because FDNS immigration officers are not adjudicators, they do not make decisions on petitions or applications for immigration benefits. USCIS will review an officer’s Compliance Review Report for any indicators of fraud or noncompliance, and, FDNS may refer the case to U.S. Immigration and Customs Enforcement for criminal investigation.

FordMurray Law

A National Business and Family Immigration Law Firm

Understanding USCIS’s H-1B Employee Site Visit Policy

By FordMurray

If you employ temporary H-1B employees, then you need to be prepared to face random site visits from US Citizenship and Immigration Services (USCIS). This can be a daunting exercise, but due diligence and an established protocol for dealing with site visits and audits can set you and your employees up for success.

It is important to remember that USCIS has a legitimate policy that allows them to conduct these random visits to verify the employment of your foreign national employees.

Known as the Administrative Site Visit and Verification Program, this policy was instituted in 2009 to better allow for USCIS and the Department of Homeland Security to police and detect immigration fraud and verify the information detailed in certain visa petitions, including H-1B, L-1, and Religious Worker petitions.

While it is technically not mandatory, it is in your best interests to allow the Fraud Detection and National Security (FDNS) officer access to your workplace and the H-1B employee.

Site visits will be unannounced and conducted on a random basis based on individual H-1B employees. Thus, the more H-1B employees you employ, the more likely you are to be visited by inspectors.

You should always request verification of the inspector’s credentials, but once verified, you need to comply with their requests.

Throughout the visit, the inspector will seek to verify information from the H-1B petition, and also that the foreign national employee is still currently employed by your company. They will want to speak with the sponsor of the H-1B petition, and if he or she is not available, someone of equal authority within the company.

They may want to tour your operation to ensure that the business is legitimate and engaged in appropriate activities. They will ask questions about the H-1B employee’s position within your company, his or her duties, and their terms of employment. It is essential that you and the H-1B employee each fully understand these details from the H-1B petition.

The inspector will also want to speak with the actual H-1B employee to ask similar questions about their employment. Once again, the inspector is seeking to verify compliance with all details from the original petition.

If the inspector has any reason to suspect noncompliance or fraud, he or she may refer the case to Immigration and Customs Enforcement (ICE), which could result in major repercussions for your company and possible deportation for the H-1B employee.

However, these visits should not be feared—you merely need to be prepared and work diligently to always comply with the terms of the H-1B visa. Keep excellent records of all documentation and applications, and be sure to update the visa as needed, such as if your company changes addresses. Also, while you are not required to keep tabs on an H-1B employee after they are terminated, you do need to keep detailed documentation regarding the actual termination of the employee.

A knowledgeable immigration attorney like those at FordMurray law can help you ensure legal compliance from start to finish when it comes to employing H-1B employees. We will make sure you are prepared to handle any site visits from USCIS. Contact us today .

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USCIS Administrative Site Visits, FDNS – Employees Questions ? How to be Prepared ?

Since Trump Administration took office, there have been many changes to the way H1B petitions, L1 visa cases are processed and more scrutiny. USCIS has indicated that they will increase site visits to detect fraud and violations as part of the Trump’s Policies and changes to strengthen H1B Program . It is important for you as H1B Employee or L1 worker to be prepared and have the right information in-line with your petition to avoid any future issues.

USCIS Administrative Site Visits Program ? What is FDNS ?

USCIS created this program of Administrative site visits in 2009 to combat fraud and check compliance. As part of the program FDNS ( Fraud Detection and National Security) Officer make unannounced visits to H1B sponsors offices, candidate’s location for compliance review. While the title of the officer seems fancy, it is just a title given for officer who collects info and conducts audit, so do not be worried. The employers for site visits are randomly chosen based on some metrics and some are very targeted after Trump Administration took over.

Important Note : As of now, participating in this program of Administrative site visits is voluntary, but highly desirable. You should check with your employer and have it clarified, if your company wants to participate in it or it. You can tell to the FDNS officer that you are unwilling to participate and they will not further proceed with the site visit and ask for details. They may follow up with your employer or you via email/ phone call or fax.

There are two aspects of it, one is FDNS officer doing site visit and audit of Employer’s location and working with HR and second is to interview the Employee / Beneficiary. In our context, we will cover only the employee part.

How does the Administrative Site Visit happen – Employee ? What to expect ? What to ask ?

Step 1 – arrival of fdns officer at work location :.

Usually FDNS officer will arrive at the work location that is specified on your H1B or L1 petition and without prior intimation and ask the front desk to meet the employee. So, it is important for you to make sure, you know the exact work location that is on your petition, especially in cases that have third party worksite details.

Important Note : It is recommend that you ask the FDNS officer to show identification to be clear. Nothing to fear, it is your right to validate the credentials. You should ask for business card as well.

Step 2 – FDNS Officer Inquiry, Questions, Documents

Once you meet the FDNS Officer, he / she would ask you few questions and may ask to check your exact work desk and they may take pictures as well and document info. Below are some questions that you can expect and need to be prepared with.

USCIS Administrative Site Visit Questions for Employee / Beneficiary :

What are your Job duties ?
What are your qualifications ?
What are your terms of employment ? Since when you were employed ?
What is your job title ?
How many hours do you work per week / month ?
Where do you exactly work in terms of locations ?
What is manager’s name ?
Who do you work with on a day to day basis for getting work ?
Who does your performance appraisals ?
When you were hired at the company
What is your Salary ?
Ask for copy of your LCA ?
Ask for recent paystubs ? How much are you paid ?
Ask if you were paid on time and every month ?
Ask to meet HR or Your current manager and verify all the details that you have said are same.
Ask, if you paid for the H1B Petition ? If so, how much ?

The whole goal of all these questions above are to ensure that your current employment and duties are same as what was filed in the H1B or L1 petition.

Important Note : As you can see majority of the questions that you would get are related to your H1B or L1 Petition, your job duties, and your profile. It is very important for you as employee to have a copy of your approved H1B or L1 Petition and you understand fully the role, your duties and see if there are any differences. If so, make sure you are aligned with your employer. It is very important for you as an employee to have a conversation with your employer and the immigration attorney on the administrative site visits and protocol for you to follow, if there is a FDNS site visit. You should also request for a copy of your I-9 so that you understand what is in it.

Step 3 – Documenting the Site Visit by FDNS Officer :

Once officer speaks to you, they will document all the information that was told by you and submit that report to USCIS. If there are any discrepancies in the information, you may be issued a NOIR ( Notice of Intent to Revoke).

What if I am not present during FDNS Officer Site visit ?

Sometimes, you may not be present at the actual work location for a variety of reasons like you may be on leave or traveling for business or maybe your work location is different. It is very important to make sure that your absence is documented or informed to HR or your Manager at your worksite, so that they can give right answer. USCIS officer will email you or call you to arrange for another meetup when you are back in office. If let’s say your work location has changed and that details are different from the one in petition, then it could lead to issues in compliance. Also, if you are working in different places, that has to be detailed in the itinerary when the petition is submitted so that all that info is there to avoid issues. It is important for you as an employee to be clear on your current work address and the one that was in petition to be same. Even, if you take promotion and change offices, that has to properly documented and updated as needed by working with your attorney otherwise, site visits can cause issues.

Overall, there is nothing to panic, if you get a administrative site visit. Does not mean that your company was bad or anything, it would just be that you got lucky in random selection of company…You have your rights to ask for identification and there is nothing to worry. You need to make sure you discuss scenarios like these and be prepared to avoid issues.

Were you part of a site visit with FDNS officer ? What questions were asked ? Your thoughts ?

Reference : USCIS Administrative Site Visits Program Page

USCIS H1B Site Visit – Is Call on Phone a Scam? Real-Life Case Examples

USCIS H1B site visit for verifying employer ID card, physical work location, daily work assignments. Interview over phone in Coronavirus, email documents. How to avoid scams.

USCIS H1B site visit is performed physically to verify the H1B or L visa work location and real work.

USCIS’s FDNS department conducts these surprise visits for people who are deployed at client work locations.

H1B Full-time employees can also expect these visits.

This article will discuss:

USCIS H1B Site Visit in CoronaVirus

What can happen after uscis site visit.

Many people have reported that they have received calls from USCIS (or at least the person says they are from USCIS) and asked to furnish H1B approval details.

This is a very serious matter as it is difficult to differentiate between fraud and genuine calls.

USCIS call over phone Experience 1

USCIS h1b site visit documents requested

One of our guests had reported privately that a USCIS FDNS officer contacted the employer and then called the H-1b employee directly over the phone instead of visiting the office physically during Coronavirus emergency week.

USCIS fraud detection officer asked about the Job description, supervisor, salary, and work location over the phone.

The officer then asked the H1B employee to submit these documents via email directly to the officer:

Copy of work ID card
List of job duties performed on a daily basis.
A copy of my college degree
Last four pay stubs

USCIS call over phone Experience 2

Another guest shared her experience on one of our WhatsApp groups.

In her case, the interesting thing is the USCIS never contacted the employer and informed her about the site visit or the phone call directly to the employee.

Read here experience here (we have hidden information that’s personal):

USCIS officer calling to verify H1B details

She was quite vigilant and hence pushed for meeting him at the nearest USCIS office. This is the safest option to protect your own identity.

You should also meet:

At the nearest USCIS office.
At the H1B employer’s office (office may be closed due to COVID-19) – avoid it.
At public places like Walmart or public parking (do it only after you have verified the officer’s email address and identity).

On Mar 17, 2020 , the Law firm Berry Appleman & Leiden (BAL) confirmed to Forbes in one of the articles that USCIS will not conduct H1B site visits if the employer has closed the office.

Since then, USCIS has made multiple changes and has closed all personal contact services even for cases where the employer’s office is open.

USCIS officers do not call H1B workers directly over the phone normally. They usually first contact the employer. In the example case, the officer first contacted the H1B employer and then called directly on the employee’s phone. The employee was not aware of the officer and thought that it might be a scam call. The employer should have notified the employee about this situation so that the employee would expect any such call.

The first thing to do is to contact your attorney and share the information about this USCIS officer’s call. If the employer has not been notified first, then it most probably is a scam call. You should send your H1B documents to someone who can be legitimately verified. Ask them to send you an email from their official USCIS email address. The official email address should look like [email protected] Do not email your documents if you cannot verify the USCIS email address.

The phone call number may not show the USCIS’s official name. You need to be extra careful while disclosing any of your personal or work information over the phone. You should first clearly ask the officer to identify himself with his name, ID, and USCIS email address. You can politely say that you need an officer’s information to protect your own Identify theft.

Emails can be spoofed easily. You should confirm the email address by looking at the actual host first .

USCIS Officer Questions – Physical Visit

The officer normally asks you to show your employer ID card, and physical work location, and speak about your daily work assignments.

You may be asked to log in to your computer and show what software you use to perform your daily job. Your client manager may be asked questions about your work too.

#1 Questions About H1B

What is your present full-time employment location?
Name and address of end client;
Which other location do you visit for meetings and training?
What is your hire date? What day did you start working at the end client’s location?
What is your position title?
What are your duties?
How many hours per week do you work?
What is your work schedule?

#2 Work History Questions

Name of the company you worked for in the past.
What were your position (s)/ title?
Work location.

#3 Education Questions

What institution of higher education did you attend?
What was your educational major?
What years did you attend and when were you awarded your degree?

You should be very careful in answering questions about your client manager’s role in giving daily assignments, hiring and firing decisions, and performance appraisal if you are working at a client site.

Remember that a person on your H1B employer’s direct payroll should have all these powers for you and not your client manager.

Whatever you show and speak is recorded and then compared with what is written in your H1B application.

If there is a serious mismatch found between what you are doing and your approval, the officer can recommend revoking your H1B which essentially means issuing NOIR.

Can H1B work from home? - New LCA or amendment required?

Can H1B Work from Home? Is a new LCA or Amendment Required?

Free attorney advice in USA for H1B, H4, L visa, F visa

List of Attorney for Free Advice on Call, Email – H1B, H4, L, F visa

Prove Employer Employee relationship for H1b RFE

RFE Documents for H1B Employer Employee Relationship

Form 221g Blue, Yellow, White Reasons – Canada, Mexico, India

Top 10 Reasons of H1B RFE by USCIS

USCIS H1B Extension Documents Checklist, Sample Work Itinerary

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USCIS Site Visits: What to Expect

The U.S. Citizenship and Immigration Services (USCIS) continues efforts to ensure employers of H1B and/or L-1 workers are compliant by visiting the worksites of selected foreign national workers. These site visits, which typically are carried out by Fraud Detection and National Security (FDNS) officers, generally are unannounced, meaning that H1B and L-1 employers and employees should be prepared for such potential visits, and have an idea of what to expect.

Employer May Request Identification from FDNS Officer

An FDNS officer should have proper identification and USCIS credentials, and should show these to the employer. Employers should always ask for the identification of any persons claiming to be acting on behalf of the government. The officer will want to speak with the H1B or L-1 petitioner (the individual who signed the petition). If s/he is not available, the officer will seek out an appropriate alternative individual, who has authority within the company.

Employers should discuss the possibility of such visits with their human resources (HR) or other appropriate personnel. If an employer wishes to have an attorney present, the inspector should be informed and additional time requested, if needed.

Inspector’s Observations on Employer’s Bona Fides and Operation

The inspector will look at the public aspects of the employer’s premises to determine if the address on the petition appears to be that of the petitioning organization. The signage will be examined for the name of the business. Neighboring businesses or residents may be asked to verify the location and existence of the business. The type of premises will be noted, and photographs may be taken.

With permission from an organizational representative, the officer may tour the facilities. The purpose is to determine if the business appears to be legitimate and engaged in appropriate business activities.

Employer Questioned on Employee, Job Duties, and Other Details

The officer will ask the selected company representative general questions about the H1B or L-1 worker. These questions will cover information taken from the petition and will include details of the position, duties, and terms of employment.

During the visit, the officer will attempt to verify whether the beneficiary currently is employed by the sponsor. If the individual is employed by the company, the USCIS will ask for proof. If the individual is not employed by the company, the USCIS may inquire as to whether the employer has information about the foreign national’s location and current employment. This is one of several reasons it is important for H1B and L-1 employers to properly document employment terminations. However, employers are not responsible under the law for tracking their former employees following proper termination.

If the company employs any H1B workers, the officer may also request to examine the public access files. Although the U.S. Department of Labor (DOL) has the primary responsibility for ensuring that these files are properly maintained, the USCIS also has the right to inspect them, as these files are required to be available to members of the public.

H1B or L-1 Worker Will Be Questioned

The officer will want to speak to the H1B or L-1, who will be asked to show valid identification. The purpose of this discussion is to determine if the beneficiary’s employment is consistent with the terms and conditions in the petition. The beneficiary will be expected to speak knowledgeably about the position and employment. For H1B workers in particular, there may be questions regarding the foreign national’s educational background. The officer also may inquire into payments made by the employee in connection with the filing of the petition.

Further Inquiry of Employer May Be Recommended

As part of the inspection process, the officer will attempt to verify whether the employee is being paid the required salary, and performing the employment duties set forth in the petition. At the conclusion of the officer’s report, a recommendation will be made regarding whether further inquiry is appropriate. The recommendation will have to be explained in the report.

Employers should anticipate and prepare for this type of site inspection before an FDNS officer arrives. A policy and protocol should be in place for such site inspections. Appropriate employees need to be aware of this inspection program. To the extent that such inspections may cause alarm among employees who are not involved, some discussion or explanation may be advisable beforehand. Administrative site visits of this type generally are random. They are not necessarily an indication that a company has engaged in wrongdoing. Company representatives may wish to discuss matters related to these inspections with a knowledgeable attorney at the Murthy Law Firm and may contact our office for a consultation on this topic.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

What H-1B Employers Should Expect During USCIS Site Visits

Other firm news.

In an effort to eliminate fraud, the United States Citizenship and Immigration Services (USCIS) is expanding its number of unannounced visits to the worksites of employers that sponsor H-1B visa holders.

These site visits, conducted by the USCIS Fraud Detection and National Security Unit (FDNS), may occur at the H-1B employer’s principal place of business and/or at the H-1B employee’s work location(s). The purpose of the site visit is to verify the existence of the employer and the information the employer provided in its immigration filings.

Investigators will also be determining whether sponsored foreign nationals are working in compliance with the terms and conditions specified in the H-1B filing made by employers on their behalf. Once the investigators collect the relevant information, they provide it to the USCIS adjudicator who is handling the petition so that a decision on the petition can be issued. In some instances, the investigators are verifying the employment of an employee whose H-1B petition has already been approved.

Who is Conducting These Visits?

Employees of the USCIS Fraud Detection and National Security Unit, as well as outside contractors that were hired solely to conduct these investigations, conduct administrative site visits. Site visits may also be conducted by investigators from other government agencies, including Immigration and Customs Enforcement and the Department of Labor, but are much less common currently.

How Will the Investigator Identify Him- or Herself?

Employees of USCIS-FDNS will normally present a badge or other identification credential issued by the Department of Homeland Security. Contractors will normally present a business card with a 1-800 number for an FDNS hotline the employer may call to verify that the contractor is conducting site visit for FDNS.

To Whom Will the Investigator Ask to Speak?

The investigator will normally ask to meet with the signatory of the petition or another employee whom the USCIS believes to be an appropriate company representative. In some cases, the investigators may ask to meet with the employee sponsored in the H-1B petition.

What Will the Investigator Ask?

The investigator will come with a list of questions about the company, the employee’s position and the employee’s qualifications to determine the accuracy of the information contained in the H-1B filing.

Clients have reported being asked for specific information about the company, including:

Information regarding the employer’s business operations, locations and total number of employees;
Copies of company financial documents including annual reports, tax returns and quarterly wage reports;
Information on the number of H-1B petitions that the company has filed and the current number of H-1B employees on staff;
Verification of the authenticity of the employer’s signature on the H-1B petition;
Specific information about one or more H-1B employees, including their job duties, credentials, salary, work location(s) and title; and
Copies of employee’s W-2s and paystubs to verify that they are working for the employer and being paid appropriately.

Investigators may also ask to speak with the H-1B employee to verify their position, duties, the requirements of the position, their start date, work location, and salary. Investigators may question the employee about their qualifications including previous work experience and educational credentials.

After speaking with the designated company representative and/or the employee, investigators may ask to tour the company facility, the employee’s department or to visit the employee’s workspace. Designated company representatives are advised to accompany the investigators at all times. If investigators request or insist on access to non-public parts of the employer’s business operations, company representatives should refer the request to corporate counsel.

The investigator may ask to review certain documents, including a copy of the H-1B petition, the employee’s paystubs or the company’s annual or financial reports. Providing such information is voluntary, and in the event that the information requested is non-public or extensive, company representatives should refer the request to corporate counsel.

What Documents Are Employers Required to Maintain?

In preparation for these site visits, employers should maintain easily accessible copies of all H-1B petitions filed with the USCIS. We recommend maintaining copies of H-1B petitions in a central location so that they are easily accessible to the Human Resources representative. Large employers should consider keeping copies of H-1B petitions at their central location as well as with a designated representative at the employee’s worksite(s). Remember, FDNS investigators can visit either corporate headquarters and/or the employee’s work location(s).

Will We Be Given Advance Notice of the Visit?

Generally, investigators arrive unannounced. However, in some cases they may contact a company representative ahead of time to inform of the visit.

What Do We Do if an H-1B Investigator Pays Us a Visit?

Don’t panic! H-1B site visits are now going to be a normal part of the application process. In most cases, these visits will be simply to verify the facts contained in an immigration filing and the existence of the employer. However, if investigators appear to be extensively questioning the answers given or the documents presented to them, corporate or immigration counsel should be contacted. Likewise, if it appears that the investigator is requesting multiple copies of petitions or wants extensive non-public information, notify counsel’s office immediately.
Ask the investigator to identify his/herself by name, provide their officer number and the agency that she/he works for. Ask the investigator to provide you with a business card for your records. Make sure to note the officer’s information on the card, before proceeding with the interview.
Remember, there are many different government agencies that may be conducting investigations, including Immigration and Customs Enforcement and the Department of Labor. If the investigator is not from the USCIS FDNS Unit or a contractor of FDNS and is asking to see the company’s Form I-9s, LCAs or Public Access Files, contact the company’s corporate or immigration counsel immediately.
Guide the investigator into a company conference room or other neutral space. It is not advisable to conduct interviews in employee offices or to leave the investigator unaccompanied. Should the investigator ask to tour the facilities, a designated company representative should accompany them. Note, that investigators can refuse to have a company representative accompany them to meet with H-1B employee. If investigators request or insist on access to non-public parts of the employer’s business operations, company representatives should refer the request to corporate counsel.
Respond to the questions posed by the investigator as best you can and provide them with copies of the documents requested. Never allow investigators to take original documents. If you are not sure of the answer to one of the investigator’s questions or have doubts about whether to release this information to the investigator, refer them to outside counsel or the company representative who prepared the H-1B filing. The investigator should agree to this request. Do not guess any answers.
Keep a written record of all questions asked and the responses provided. This record should include the names of all employees with whom the investigator spoke, information on all questions asked and the responses provided, a list of the company documentation provided to the investigator, the locations visited during the site visit and whether pictures of the employer’s facility were taken. If the company representative was not permitted by the investigator to accompany them to speak with the H-1B employee, please have that employee also write down all questions and answers provided to the FDNS investigator.
Contact immigration counsel following the site visit to provide them with an overview of the questions asked and the responses given.

What Can We Do to Prepare for Site Visits By the USCIS?

Inform all company staff about the possibility of site visits by the USCIS. Make sure that office receptionist and other support staff knows who to contact within Human Resources or the employee’s department to respond to the investigator’s inquiries.
Designate an employee who will act as the main contact person for the investigator. It is also advisable to designate a second contact person in case the main contact person is not available. If you are a large company, it may be worthwhile to designate a person within Human Resources, as well as someone within the employee’s department as a designated company contact person with appropriate back-ups.
Maintain immigration documents in a central location. This will enable employees to easily identify the H-1B petition in question and provide it to the main contact person for review during their discussion with the investigator.
Have counsel’s contact information readily available in case the investigator poses questions you cannot answer or you feel that the interview has become adversarial.
Notify H-1B employees that they may be required to meet with USCIS agents as part of the H-1B filing and to have documentation on-hand to verify their identity.
Human Resources departments coordinating the filing of the application should be sure that they properly coordinate with the H-1B employee’s department to ensure that they have an accurate job description for the employee. The creation of a periodic tickler system to check that the accuracy of information contained in the petition including the employee’s title, salary, geographical location and work hours is advisable. This will ensure that extensions, amendments and withdrawals of H-1B petitions are timely filed.
Remember, that counsel can be invaluable during these times in training Human Resources personnel on applicable H-1B regulations and requirements. For companies that file H-1B petitions in-house periodic audits can help to ensure that your company is in compliance with all immigration regulations. Mock interviews may also help company representatives to prepare for site visits.

With the government’s current focus on increased immigration enforcement, it is more important than ever for employers to fully comply with all relevant immigration laws.

At Klasko Immigration Law Partners, LLP , our experienced business immigration lawyers and team of professionals assist businesses around the country in preparing corporate policies and programs to ensure full compliance with federal laws and regulations. We have extensive experience in representing employers in USCIS, DOL and ICE investigations.

WEBINAR: We will be hosting a free webinar next week to discuss what to expect when “Immigration” comes knocking at your door. More information will be forthcoming.

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Are you ready for uscis h-1b site visits or department of labor audits.

April 09, 2018

Now that the FY 2019 H-1B cap has been reached, make sure you have a strong immigration compliance programs in place, particularly when it comes to Department of Homeland Security’s H-1B Site Visit program and Department of Labor H-1B/Labor Condition Application Audit program. As reported earlier this year, the government plans to step up targeted site visits and audits for H-1B cases in 2018.

This enhanced enforcement effort is due in part to a report published last fall by the Inspector General and its audit of the USCIS Administrative Site Visit and Verification Program (ASVVP). According to the report, the Inspector General’s office stated that USCIS approved more than 330,000 new, extended or amended H-1B visa petitions during FYs 2014-2016, but only conducted an average of 7,200 H-1B site visits during those fiscal years, which represents only 3 percent of all approved H-1B petitions and fell short of the USCIS goal. In addition, the report recommended that USCIS improve its information-sharing relationships with other agencies such as the Department of Labor, Department of State and Immigration and Customs Enforcement to better identify high-risk employers for targeted site visits.

As a result of the 2017 report, USCIS indicated that it would implement a more targeted approach when making site visits at the worksites of H-1B employees, focusing on:

Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted Site Visits

Targeted site visits will allow USCIS to utilize its resources more effectively at employers where fraud and abuse of the H-1B program may be more likely to occur. At the same time, USCIS will continue random and unannounced visits nationwide.

These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action, but rather to identify employers who are abusing the system. USCIS has also established an email address which will allow individuals (including both U.S. workers and H-1B employees who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted will be used for investigations and referrals to law enforcement agencies for potential prosecution.

The visits are primarily conducted by the USCIS Office of Fraud and Detection and National Security (“FDNS”). These site visits are being done without advance notification to the employer. Although the actual site visit will vary in each case, the primary goal is to verify that the facts contained in the underlying H-1B petition are true. The Officer may want to confirm that (1) the employer exists, (2) the employer knowingly filed the petition, (3) the facts submitted regarding the job duties and salary are accurate and true, (4) the employee is qualified for the position, and (5) the employee is being paid the offered wages. Typically, the site visits will take about 30 minutes to complete.

Increased Audits

In addition to USCIS site visits, the Department of Labor will be conducting more audits to ensure that H-1B petitioners are complying with the Labor Condition Application (LCA) wage obligation attestations and keeping accurate Public Access Files (PAF). Therefore, it is important to carefully review the PAF requirements and develop procedures and processes to ensure consistency and accuracy. Employers must also take note of the specific retention requirements relating to the PAF – an especially important consideration when preparing for an audit.

Under the DOL regulations, an employer must retain copies of PAF records for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no nonimmigrants were employed, one year from the date the LCA expired or was withdrawn. In addition, the employer must maintain required payroll records for a period of three years from the date(s) of the creation of the record(s). Recently, DOL confirmed that H-1B employers can maintain a PAF file electronically.

How Can You Prepare Your Company for a Site Visit or a DOL Audit?

Designate a lead employee to serve as the “coordinator” for the site visit or audit (you may want to have more than one person so that you have a backup).
Inform your receptionist or front desk person who the “go to” person is.
Maintain good record keeping so that the petition materials are easily accessible.
Let H-1B employees know about the possibility of a site visit or audit and the possibility that they may be interviewed to verify specific information in connection to their employment.
Although the site visit program is voluntary, we suggest you respond to the officer’s questions.
In either scenario it is important to consult with your Foley attorney prior to responding.

The many compliance initiatives this year, and particularly the Site Visit Program by USCIS, serve as a reminder that the immigration petition process carries with it a potential liability for the employer and its employees. It is therefore important to ensure that the immigration petition process is monitored carefully and that the petition preparation and document maintenance procedures are consistent with the organization’s standard compliance protocol. If you should have further question regarding the site visit program or other immigration compliance related issues, please contact our office.

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How to Prepare for a USCIS Site Visit

Sep 11, 2023.

If you’re a company that employs highly skilled foreign workers, you may be visited unannounced by U.S. immigration authorities. The goal of these visits is to ensure you’re complying with U.S. immigration rules and regulations. In this article, we’ll go over what employers can expect during a worksite visit and how to prepare for one.

Understanding the Purpose of Worksite Visits

Worksite visits, carried out by immigration officers in the Fraud Detection and National Security Directorate (FDNS), are part of the government’s efforts to ensure that employers are complying with immigration laws and that the foreign worker’s employment conditions match the details provided in the visa petition. These visits typically occur after the visa application process has been completed and the foreign worker is already working in the United States.

Keep in mind that participating in the compliance review process is voluntary, but “strongly encouraged .” If the employer or employee refuses to participate, the FDNS “ will complete the compliance review by using all available information and will document the circumstances of around ending the site visit,” according to U.S. Citizenship and Immigration Services (USCIS).

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What Visa Types Are Subject to Worksite Visits?

The FDNS currently conducts site visits for the following visa types:

H-1B nonimmigrant work visa
L-1 nonimmigrant visa for employees transferring to their company’s U.S. office
EB-5 investor visa
Special immigrant religious workers

Key Steps to Prepare for a Worksite Visit

Designate a Company Representative The officer will want to speak with the individual who signed the visa application (the petitioner). If the petitioner is unavailable, have an alternative authorized representative ready to interact with the officer.
Inform HR and Legal Counsel Employers should communicate the possibility of worksite visits with their HR or relevant personnel. If you wish to have an attorney present, inform the inspector and request additional time if necessary.
Confirm Officer’s Identity When an FDNS officer arrives, you have the right to request proper identification and USCIS credentials. Always verify the identity of anyone claiming to represent the government.
Site Inspection The inspector will first make sure that the company building matches the address on the petition. They may also inquire with neighboring businesses or residents to verify your company’s location and existence.
Facility Tour With your permission, the officer may tour your office to assess the legitimacy of your business activities.
Employee-Related Questions The officer will inquire about the foreign worker, including the details of the position, responsibilities, and employment terms. They may also verify the worker’s current employment status and may request proof if needed.
Public Access Files If you employ H1-B workers, the officer may request to review public access files, which contain information about the H-1B employee and must be made available to the public.
Employee Interview The officer will interview the foreign worker to make sure their position aligns with the terms and conditions laid out in their visa application. They should be prepared to discuss their position, job duties, and educational background.

What Happens Next?

Since FDNS immigration officers are not responsible for making decisions on immigration petitions, their role does not involve granting or denying immigration benefits. Instead, USCIS reviews the “Compliance Review Report” prepared by these officers to identify any signs of fraud or noncompliance. If significant concerns are identified, FDNS may refer the case to U.S. Immigration and Customs Enforcement (ICE) for potential criminal investigation.

The Bottom Line

Worksite visits may seem daunting, but with proper preparation and adherence to immigration regulations, employers can navigate them successfully. Having a well-defined policy and protocol for such inspections can help streamline the process. Remember, inspections are often random and don’t point to any wrongdoing on your part. If you have concerns or questions, it’s a good idea to consult with a knowledgeable immigration attorney who can provide guidance and support for these visits.

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What Are Your Rights When There is a USCIS Site Visit for an H-1B?

The USCIS Fraud Detection and National Security Directorate (FDNS) conducts unannounced site visits to ensure compliance with various immigration programs. While USCIS has multiple units for detecting fraud, including on the family based side, FDNS is specifically tasked with conducting compliance-review for special immigrant religious workers (before and after adjudication), H-1B workers (after adjudication), L-1 workers (after adjudication), and EB-5 investors (before adjudication. This article will focus mostly on H-1B as that tends to be the majority of the visits.

FDNS officers typically show up unannounced at the petitioner location and/or the worksite of the H-1B worker and tend to not only ask questions during the visit, but will follow up with a list of documents and questions after. They tend to have absurd requests for a timeline, including demanding a response the next day, and the list of documents tend to go well outside the regulatory or statutory scope of the H-1B and tend to go outside of the specific petition for the beneficiary. Often times they will ask for documentation for all employees. FDNS is designed to be high stress and lead you to cooperation. However, they have been known to take only certain facts to present to USCIS or put you in a pressure situation where you mistakenly answer something wrong. Further, we have seen an increase of USCIS using information from an H-1B site visit in the I-485 interviews leading to issues with the I-485. The good news is that as an individual and as a company, you have rights in these proceedings, and it is important to understand them prior to responding to any FDNS request.

First and foremost, it is important to remember that the FDNS Administrative Site Visit and Verification Program (ASVVP) is a voluntary program. While USCIS will “highly encourage” participation, it is not mandatory. Should you inform an officer that your company or you as an H-1B beneficiary decline to respond “the FDNS immigration officer will complete the compliance review by using all available information and will document the circumstances around ending the visit.” see https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/administrative-site-visit-and-verification-program ( last visited Nov. 14, 2022). As a company and high skilled immigrant, you are often too busy to be on FDNS’s schedule to respond immediately, nor does it provide you any benefit to do so. Our firm has previously declined to participate on behalf of clients before and to date we have not seen any negative repercussions on doing so. While USCIS could always list non-participation in a notice of intent to revoke, which I think could be defeated, the worst case scenario we have seen is the FDNS officer sending an administrative “subpoena.” While a whole article could be written about the enforceability of those, if you receive one, I would advise you contact an attorney to discuss your options or just respond.

Second, you can still utilize an attorney. Your right to counsel does not end just because FDNS shows up and demands information. What we usually recommend is either direct them to your attorney, or if they send an email, have the attorney respond informing the officer you are represented by counsel. As an attorney, I have had many interactions with FDNS officers and have found that some engagements are better left to an attorney. For example, declining to respond might be better left to an attorney to respond. Some officers try to push back, make veiled threats, or pretend they have more authority than they actually do. Utilizing an attorney who is used to dealing with these FDNS officers can be a helpful tool to play as a buffer between you as an individual, your company, and the FDNS officer.

Finally, it is always within your right to just respond. If you choose to go this route, I would ensure you review the officers request completely and ensure you are providing only what is needed. Review your documentation prior to sending so as to ensure that things are accurately presented.

FDNS visits can be time consuming and are typically designed to be stressful. It is worth understanding your rights and how to use them. As an H-1B employee or an H-1B petitioner, your time is too valuable to waste on FDNS fishing expeditions, nor does participation provide much value and can tend to be harmful to you or your company. If you receive an FDNS site visit, contact a qualified employment-based immigration attorney to discuss your options.

Reddy Neumann Brown PC has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.

By : Steven Brown

Steven Brown is a Partner at Reddy Neumann Brown PC where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.

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Immigration

Preparing for a USCIS Site Visit: Key Steps and Tips

Worksite visits by u.s. immigration authorities are becoming more common to ensure employers are complying with immigration laws. this article outlines the purpose of these visits, which visa types are subject to them, and key steps employers should take to prepare. it advises designating a company representative, informing hr and legal counsel, confirming the officer's identity, conducting a site inspection and facility tour, answering employee-related questions, reviewing public access files, and conducting an employee interview. proper preparation and adherence to regulations can help employers navigate these visits successfully..

Key Takeaways:

U.S. immigration authorities may conduct unannounced worksite visits to ensure compliance with immigration laws.
The FDNS typically inspects businesses employing foreign workers on specific visa types, including H-1B and L-1 visas.
Employers should prepare for worksite visits by designating a representative, informing HR and legal counsel, and having necessary documentation ready.

Understanding Worksite Visits by U.S. Immigration Authorities

As a business employing foreign nationals, it’s essential to stay prepared for unannounced worksite visits from U.S. immigration authorities. These inspections ensure adherence to immigration laws and verify that foreign workers’ employment conditions align with their visa applications. The Fraud Detection and National Security Directorate (FDNS) officers conduct these visits to foster compliance.

“Participating in the compliance review process is voluntary, but ‘strongly encouraged.’ If the employer or employee refuses to participate, the FDNS ‘will complete the compliance review by using all available information and will document the circumstances around ending the site visit,'” notes the U.S. Citizenship and Immigration Services (USCIS).

Which Visa Types May Be Inspected?

The FDNS typically visits businesses with employees on the following visas:

H-1B nonimmigrant work visa
L-1 nonimmigrant visa for intra-company transferees
EB-5 investor visa
Visas for special immigrant religious workers

Preparing for a Worksite Visit

Designate a company representative.

Ensure someone authorized, preferably the individual who signed the visa application, is available to interact with officers during the visit.

Also of Interest:

Does your tourist visa expire when your passport does, impact of employment status on us permanent residency applications, keep hr and legal counsel informed.

HR departments should be aware of possible visits. Include legal counsel if necessary, and don’t hesitate to ask for additional time for counsel to arrive during the visit.

Validate the Officer’s Identity

When an FDNS officer arrives, always ask for proper identification and their USCIS credentials to ensure they legitimately represent the government.

Expect a Site Inspection and Facility Tour

Officers will verify the business address and may request a tour to ensure your operations are genuine.

Prepare for Employee-Related Inquiries

The FDNS officer will ask questions about the foreign worker’s role, work scope, and conditions to confirm they match the visa petition.

Have Public Access Files Ready

For H-1B employees, you should have the required public access files available for review. These files disclose essential details about the H-1B employment.

Anticipate Employee Interviews

Foreign employees should be prepared to discuss their job duties and qualifications, as alignment with their visa petition terms will be checked.

What Happens After a Worksite Visit?

Although FDNS officers don’t make decisions on the spot, their findings contribute to a “Compliance Review Report” for USCIS to evaluate. In cases where noncompliance or fraud is suspected, FDNS may refer the matter to ICE for further investigation.

The Bottom Line

While the thought of immigration checks might be intimidating, knowing what to expect and preparing accordingly can make the process manageable. It’s beneficial to establish clear protocols for dealing with worksite visits. Remember, these checks are usually random and don’t necessarily imply any misconduct.

For more detailed information or if facing a worksite visit, it’s advisable to seek counsel from an experienced immigration attorney. For guidance on immigration policies , visit the official USCIS website.

Worksite visits underscore the importance of staying compliant with U.S. immigration laws, and with the proper approach, employers can ensure a smooth and successful review process.

So, my tech-savvy friends, we’ve reached the end of our fascinating journey into worksite visits by U.S. immigration authorities. Remember, staying prepared is key! Keep your company representative on standby, inform HR and legal counsel, validate the officer’s identity, and expect a facility tour. Don’t forget those public access files and be ready for employee interviews. And hey, if you want even more tips and tricks on navigating the immigration landscape, hop on over to visaverge.com. It’s the place to be! Happy exploring! 🚀

Pocket Piece:

Understanding Worksite Visits by U.S. Immigration Authorities is essential for businesses employing foreign workers. Inspections verify compliance with immigration laws and visa conditions. Designate a representative, inform HR and legal counsel, validate the officer’s identity, expect a facility tour, prepare for employee inquiries, have public access files ready, and anticipate interviews. After the visit, findings are evaluated, and noncompliance may be referred for further investigation. Stay compliant and seek guidance if needed.

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H1B Visa FAQ: Most Commonly Asked Questions Answered

H1B visas are extremely popular. This is because they are the most common nonimmigrant work visas available to professionals or “specialty workers.” H1B visas are routinely utilized by US corporations and organizations throughout the country, regardless of industry or job duties. In my practice, I often see the same questions posed by foreign nationals regarding the nuances of the visa. I wanted to collect these most “commonly asked questions” and compile the answers for you.

In this guide, I will explain the most complicated H1B visa concepts and simplify them. If you have any questions, feel free to email me directly at [email protected] . I’m very responsive via email and I would be happy to help you.

Introduction:

1. h1b visa requirements and process, what is the minimum education and work requirements to be eligible for an h1b.

What is the H1B visa process exactly?

2. Timing your H1B

How long does an H1B visa last for?

How long does it take to get an approved h1b visa.

When can I start working on my H1B visa?

3. Popular H1B Benefit: Portability

What is the “portability” rule for H1B visas?
Am I qualified to port my H1B visa?

4. Popular H1B Questions from Employers

What information must my employer provide to file an h1b.

How much should I get paid on an H1B visa?
How does my employer determine what the required wage is for my H1B position?

What is the difference between the prevailing wage and actual wage?

5. Conclusion

Here, an American employer can apply for an H1B with USCIS (United States Citizenship and Immigration Services) on behalf of a foreign worker, so long as that the offered job requires at least a bachelor’s degree in a field of study related to the offered job. Common H1B fields include, yet are not limited to, computer sciences, engineering, mathematics, physical sciences, social sciences, architecture, health sciences, law, education, business, accounting, and other positions.

To be a “specialty occupation” the job must:

(1) require a degree or

(2) a combination of education and relevant work experience in a field closely related to the job offered.

For prong two, typically at least three years of related and progressive work experience can be evaluated to equate one year of formal college studies (this is also known as the 3 to 1 rule).

What is the H1B Visa Process exactly?

Pending on your situation, the H1B application process is typically three to four steps:

1. Collect all the information and documents needed for the petition

Proof of educational or work qualifications, passport bio data page, proof of lawful status, etc.

2. Receive certification of a Labor Condition Application (LCA) with the Department of Labor (DOL)

As of 2019, this is now done through what is called the “ FLAG System .”

3. Preparing and submitting a Petition for Nonimmigrant Worker with the USCIS

Here, you will submit your supporting evidence (point 1), Form I-129 and H Supplement, the certified LCA, and fees.

4. If you are outside the United States, have violated, or overstayed the terms of your current status, you may need to obtain an H-1B visa stamp from a U.S. Consulate abroad.

Here, you will need to submit a DS-160, pay your visa interview fees, schedule an appointment at your local consulate, and obtain visa stamping.

Remember that government delays are always a risk at any of the H-1B stages. Due to this, we often encourage our clients to pursue premium processing, where USCIS guarantees a decision within 15 days, provided no additional information is needed from the employer. The USCIS’ premium-processing program requires a supplemental $1,440 filing fee in addition to the regular H-1B filing fees.

2. Timing your H1B Visa

Typically, you will be granted H1B status for an initial period of three years and extensions can be obtained for a maximum of six years. Note that you can apply beyond six years of H1B time if you have an approved I-140.

Employers can request for shortened H-1B visa validity (less than three years). This might be for an employee who would work on a short-term project or may be part-time (note that fulltime employment is not required for H-1Bs). If your employer is requesting part-time H-1B status they must be able to demonstrate that the underlying H-1B employment is your primary purpose for being in America. H-1Bs authorize a foreign national to only work for the petitioning employer under the specified terms of the visa. Consequently, an H-1B worker may be the beneficiary of more than one H-1B petition and, therefore, can work for multiple employers at one time.

The time it takes to get an approved H-1B can vary greatly. This typically depends on the processing time of the various government agencies involved. H-1Bs are unique as not all visas require both the Dept. of Labor and USCIS to work cohesively. Therefore, if you are thinking about getting an H-1B, try to start your process on the earlier end – keeping in mind that you cannot submit your petition any earlier than six months from the anticipated employment start date.

When can I start working on my H-1B visa?

If you are outside the United States or you are holding another nonimmigrant status other than H-1B (such as an F-1 student visa or L-1A Intracompany Transferee) you cannot begin working for the petitioning employer until the H-1B petition is approved and you have officially switched over to H-1B status. Although, if you are applying for an H-1B change of employer, you may be able to start working and “port” to your new employer upon filing the H-1B petition. USCIS guarantees a decision within 15 business days if a supplemental $1,440 premium processing fee is paid and your case is not rendered an RFE (Request for Evidence).

3. Popular H-1B Benefit: Portability

What is the “portability” rule for h1bs.

If you were previously granted an H-1B visa or provided H-1B status, you may begin working for a new H-1B employer as soon as that new employer files an H-1B petition for you. What is considered “filing” for purposes of USCIS? You do not even have to wait for the receipt or I-797 notice that the application has been receipted in; rather, you can actually start upon evidence that USCIS has received the application. Therefore, you are allowed to port to a new employer immediately upon the filing of your new H-1B petition without having to wait for the USCIS approval of the new petition that can take 90 days or longer.

Am I qualified to port my H1B?

To be eligible for immediate employment authorization portability, you must meet three conditions:

You must have been lawfully admitted to the United States. Meaning, you did not enter without inspection. A lawful admission to the U.S. means that you were processed by CBP and granted an I-94 (presently, these are digitally issued one via CBP ). If you are visa-exempt, you may have some other indication of a lawful admission.
The petition for the new H-1B employment was filed before the end of your period of authorized stay that was either granted by USCIS or CBP. This means that the new H-1B petition must be filed before the end date on the person’s first H-1B petition as indicated on their I-94 or I-797.
Lastly, you must not have been employed without authorization since you were lawfully admitted to the US.

Please be sure to speak to our office before commencing work under the portability rules, to assure you are not violating your H-1B provisions.

The basic information required from your employer petitioner to file an H-1B petition includes:

Date the company or organization was established;
IRS identification number;
The total number of employees;
Net and gross annual figures, or, if a non-profit organization, the annual budget;
The specialty worker’s job title and a detailed description of the proposed job duties;
Salary of job duties;
Description of benefits;
Name and title of the person of the employer’s signatory (person who will sign on behalf of the employer); and
Information regarding the employer and the types of services it provides.

The company must be able to demonstrate the ability to pay the salary offered to the H-1B employee. Therefore, if your employer has less than 100 employees or is newly formed, they may be required to show extensive documentation to establish this. In these cases, they may want to furnish a financial statement or tax returns.

How much should I get paid on an H-1B?

In order to protect American workers, petitioning employers must compensate H-1B employee(s) with the same pay rate and benefits normally offered to an American worker in either (1) the same position and geographic area or (2) the “actual wage” previously offered to a similarly employed individual at their company, whichever is the highest of the two. Thus, the mandatory wage to pay an H-1B worker is the higher of the prevailing rate of pay or the actual wage for that position in the area of the work site. Keep in mind that employers are obligated to keep a Public Access File to establish they are paying the employee the required wage and are otherwise complying with the terms and conditions of the H-1B program.

How does my employer determine what the required wage is for my H-1B position?

Remember that the employer must pay the foreign national, H-1B employee, either (1) 100% of the prevailing wage or (2) the actual wage, whichever is higher.

The Department of Labor has defined the prevailing wage as the wage paid to workers in a specified occupation within an outlined geographic region. This wage is based upon a Department of Labor’s determination or another “authoritative source.” These authoritative sources are typically a geographically based salary surveys published within the past two years. Note that benefits may not be included in calculating the prevailing wage amount. Furthermore, employers must offer the same benefits to the foreign national as they would their similarly situated US workers - including but not limited to stock options, retirement benefits, vacation time, etc. If you are working for an educational or non-profit institution, keep in mind that there are special prevailing wage rules that apply.

The actual wage is the amount paid by the petitioning employer to its employees “with similar experience and qualifications for the specific employment in question.” When the employer enumerates “specific employment in question” – in regard to job duties and qualifications – the employer must then delineate (if applicable) among their other employees, to determine which are “similarly employed” based upon:

Job responsibility and function;
Qualifications ;
Experience;
Specialized knowledge; and,
Legitimate business factors.

If such similarly employed workers are paid different salaries, the employer must be able to justify which of these above factors justify the pay differences.

To protect American wages, the Dept. of Labor does not allow employers to drive down salaries by employing foreign nationals at a lower rate. Thus, the Dept. of Labor requires that the employer retain and sign an actual wage memorandum in a “public inspection file,” along with other LCA materials. This memorandum would include an analysis of the above listed factors and why the foreign national’s pay is justifiably lower.

6. Conclusion

Remember, there are many complicated folds to an H-1B, and most may not apply to you at all. The process may seem daunting at first, although, I am happy to break down these legal complexities and work with you and your employer.

If you have any questions about how you may qualify for an H-1B or if you need help evaluating any complexities with your case, please feel free to email me directly at [email protected] . I’m very responsive via email and I would be happy to help you.

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Michael Ashoori, Esq.

President of ashoori law.

I’m a U.S. immigration lawyer and I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.

Since starting my law firm, I’ve helped thousands of people from all over the world with their immigration needs. I’m very passionate, hard-working, and committed to my clients.

Got a question? Send me an email.

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On October 23, 2023, the Department of Homeland Security (DHS) issued a Notice of Proposed Rulemaking (NPRM) that would significantly modify the H-1B visa program. According to the DHS announcement, the proposed rule would “ modernize the H-1B specialty occupation worker program by streamlining eligibility requirements, improving program efficiency, providing greater benefits and flexibilities for employers and workers, and strengthening integrity measures .”

The proposed rule has a 60-day notice and comment period, and the final rule is expected to be published in late December or early January. Interested parties may submit comments to the proposed rule here .

The proposed rule has many provisions, and we break down the most significant into the following categories:

I. H-1B Eligibility

Definition of “specialty occupation”.

The proposed rule would revise and modernize the definition and criteria for a “specialty occupation,” which is the standard used to determine if a position qualifies for H-1B sponsorship. The current regulatory definition requires “the attainment of a bachelor’s degree or higher in a specific specialty.” This language has been interpreted narrowly in some circumstances, and has created issues for H-1B sponsorship for modern positions, which may allow a person to qualify based on a number of different degree fields.

The proposed rule would add language to this definition to codify existing USCIS practice that there must be a direct relationship between the required degree field(s) and the duties of the position and that there may be more than one acceptable degree field for a specialty occupation. The proposed rule would still prohibit H-1B sponsorship if the position only requires a “general degree, such as business administration or liberal arts, without further specialization.”

The proposed rule would also clarify the regulatory requirement that a bachelor’s degree in a specific set of fields must “normally” be a requirement for the position to confirm that “normally” does not mean “always.” The term “normally” has been restrictively interpreted by prior administrations when adjudicating H-1B petitions, and the broader definition will now be codified.

Establishment of H-1B Eligibility for Entrepreneurs

The proposed rule would allow H-1B beneficiaries who own the petitioning company that is sponsoring them to be eligible for H-1B status. The rule would create conditions for when a beneficiary who owns a controlling interest in a company may be sponsored for H-1B status by that company.

In addition, the beneficiary-owner would have greater flexibility in their job duties authorized under the H-1 process. A beneficiary who has a controlling interest in the company that petitions for H-1B status “may perform duties that are directly related to owning and directing the petitioner’s business as long as the beneficiary will perform specialty occupation duties authorized under the petition a majority of the time.”

The validity of an initial H-1B petition and for a first extension of H-1B status for a beneficiary-owned entity will be limited to 18 months instead of the standard three years that is allowed for other H-1B petitions.

Clarification of When an Amended H-1B Petition Is Required Due to a Change in Worksite

The proposed rule consolidates existing policy and would clarify when an amended H-1B petition must be filed due to a change in an H-1B worker’s place of employment, as follows:

A change in worksite within the Metropolitan Statistical Area (MSA) (also known as “area of intended employment”) does not require the filing of an amended petition. The MSA is generally considered the area within “normal commuting distance” from the original worksite.
A change in worksite outside of the MSA does require the filing of an amended H-1B petition, with a new Labor Condition Application (LCA) that includes the new worksite.
The proposed rule will maintain the DOL definitions of non-worksites and maintain the short-term placement exemption for employment outside of the area of intended employment. The short-term placement exemption generally allows placement of an H-1B worker for up to 30 workdays (for roving employees) and 60 workdays (for employees with a permanent worksite) within a calendar year without requiring an H-1B amendment.

Additional Requirements for Placement of H-1B Workers at Third-Party Worksites

In some circumstances where an H–1B worker provides services for a third-party employer, USCIS will determine if the position qualifies as a “specialty occupation” based on the third-party employer’s requirements for the H-1B beneficiary’s position, rather than the petitioner’s requirements. This is a change to current practice, where the petitioning employer’s job requirements determine if the position qualifies as a “specialty occupation.” There are some exceptions to this proposed rule.

II. H-1B Cap Lottery Revisions

Improving the integrity of the h-1b registration process.

The proposed rule would address the growing issue of having multiple H-1B cap lottery registrations submitted for the same individual, as follows:

Create a “beneficiary-centric” H-1B registration selection process, where beneficiaries with multiple registrations would only be counted once for selection purposes. Each beneficiary who has a registration submitted on their behalf would be entered into the selection process once, regardless of the number of registrations filed on their behalf. This will remove the advantage of having multiple registrations submitted for a single beneficiary.
Prevent “related” employers from filing multiple H-1B cap registrations for the same individual unless the related petitioners can establish a “legitimate business need” for filing multiple registrations for the same beneficiary. Examples of “related” employers include a “parent company, subsidiary, or affiliate.”
Codify USCIS’s ability to deny or revoke H–1B petitions where the underlying registration contained a false attestation or was otherwise invalid. To this end, the proposed rule would allow USCIS to require proof of an employment contract, work order, MSA, or other proof of a bona fide job offer to support an H-1B registration and H-1B petition filing.

Extension of H-1B “Cap-Gap” Eligibility

The proposed rule would expand H-1B “cap-gap” eligibility to extend F-1 OPT employment authorization for eligible beneficiaries through April 1 of the following calendar year, or until a final adjudication is made by USCIS on the H-1B cap petition. Currently, the F-1 OPT “cap-gap” extension is only valid through September 30 of the same calendar year, which can be problematic due to USCIS processing delays and the advent of multiple H-1B registration lottery selections.

By way of background, the F-1 “cap-gap” provides an automatic extension of F-1 OPT work authorization if an H-1B cap petition is filed on behalf of an individual who has a valid, unexpired F-1 OPT on the day the petition is filed to USCIS. The H-1B Petition must request a Change of Status for the beneficiary. The proposed rule would extend “cap-gap” work authorization through April 1 of the following calendar year, or until the validity start date of the approved H–1B petition, whichever is earlier.

III. Expansion of H-1B Quota Exemptions

The proposed rule would expand the definition of employers and H-1B workers that are exempt from the H-1B quota, as follows:

Revise the definition of an exempt ‘‘nonprofit research organization’’ and ‘‘governmental research organization’’ by replacing ‘‘primarily engaged’’ and ‘‘primary mission’’ with ‘‘fundamental activity.’’ This will allow a nonprofit entity or governmental research organization to be exempt from the H-1B quota if they conduct research as a “fundamental activity,” even if it is not the organization’s primary purpose.
Revise which H-1B beneficiaries may qualify for H-1B cap exemption when they are not directly employed by a qualifying cap-exempt organization but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose. For example, an individual working as an accountant or a software engineer for a university may qualify for an H-1B cap exemption.

IV. Codification of USCIS Site Visit Authority

The proposed rule would codify USCIS’ ability to conduct H-1B site visits under its Fraud Detection and National Security (FDNS) program. The proposed rule states:

“The proposed regulations would make clear that inspections may include, but are not limited to, an on-site visit of the petitioning organization’s facilities, interviews with its officials, review of its records related to compliance with immigration laws and regulations, and interviews with any other individuals or review of any other records that USCIS may lawfully obtain and that it considers pertinent to verify facts related to the adjudication of the petition, such as facts relating to the petitioner’s and beneficiary’s eligibility and continued compliance with the requirements of the H–1B program.

“The proposed regulation would also clarify that an inspection may take place at the petitioning organization’s headquarters, satellite locations, or the location where the beneficiary works or will work, including the beneficiary’s home, or third-party worksites, as applicable. The proposed provisions would make clear that an H–1B petitioner or any employer must allow access to all sites where the labor will be performed for the purpose of determining compliance with applicable H–1B requirement.”

The proposed rule confirms that refusal to cooperate by any of the above parties may result in the revocation of an approved H-1B petition.

V. Codification of USCIS “Deference” Policy for All Nonimmigrant Petitions

Finally, the proposed rule would codify the USCIS “deference” policy to confirm that if there is no material change in the underlying facts of a visa petition filed to USCIS, the agency “generally should defer to a prior determination involving the same parties and underlying facts.” This deference policy will give employers more certainty in their ability to extend status for employees with a nonimmigrant visa status.

Current Legal Analysis

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COMMENTS

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Administrative Site Visit and Verification Program

What is a compliance review?

Participating in a site visit is voluntary, but strongly encouraged

Types of petitions subject to site visits

How USCIS chooses site visits

Immigration officer tasks

How employers should prepare for a potential site visit

Why some employers receive repeated site visits

What happens after a site visit?

Understanding USCIS’s H-1B Employee Site Visit Policy

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