Will Immigration Authorities Visit My H-1B Employer?

If you get an H-1B visa, it's possible that immigration officials will show up at your place of work - likely unannounced - to check on you and your employer.

If you are working in the U.S. on an H-1B visa, you should know that the immigration authorities have not forgotten about you. U.S. Citizenship and Immigration Services (USCIS) launched a new program in 2009, under which it sends investigators out to make site visits throughout the United States to selected H-1B employers.

The general purpose is to monitor and detect fraud, and in some cases help USCIS decide whether or not to approve an H-1B petition -- most often, an extension -- filed on behalf of a particular employee.

Even if no fraud is found, FDNS says it will use information it collects during the site visit to help USCIS develop a database of information and profiles of the types of companies that have records of good faith hiring of immigrants and immigration compliance. That will in turn help it figure out which companies are doing the opposite and committing immigration fraud.

The actual site visits are carried out by USCIS’s Fraud Detection and National Security Office (FDNS). Apparently FDNS has been adding staff and increasing the number of site visits it performs, so it’s fairly likely your work-site will be among those chosen. (Remember that fraud fee that your employer had to pay as part of your visa application? This is where it’s going.)

Will You Receive Advance Notice of the FDNS Site Visit?

Most likely the FDNS officer will simply show up at your work-site unannounced. No employer permission is needed for FDNS to investigate the work site. Some officers have, however, been known to call the company in advance to notify it of the upcoming visit.

If your employer wants to have an attorney present, it can do so – but the FDNS officer won’t delay the visit to wait for the attorney. Unless the attorney is a very quick driver, he or she will probably need to weigh in by telephone.

What Will Happen During the Site Visit?

A typical site visit lasts anywhere from 15 minutes to an hour and a half. Of course, the officer has the power to stay at the work-site longer if he or she deems it necessary.

The FDNS officer will probably start by asking to speak to an employer representative, such as the human resources (HR) manager or whoever handles filing visa petitions. If the officer is following up on a particular visa petition, he or she will ask the HR or other manager to check the files for information on things like whether the employer actually filed the immigration petition in question (just in case someone used that company's name to fake a petition); whether you are (or a particular H-1B employee is) actually employed there; your job position, duties, and salary (as well as those of other employees who hold similar positions at the company); and your qualifications for the job, academic or educational background, previous employment and immigration history, current address, and number of dependents in the United States. The officer may also demand specific documents, such as payroll records, pay stubs, an organizational chart, and more.

The FDNS officer may also request personal meetings with you, the sponsored foreign worker, and with your direct supervisor or manager during this visit. You may be asked about some of the same things your employer was, such as the nature of your position, your duties and salary, and your qualifications for the job, educational background, previous employment and immigration history, current address, and number of U.S. dependents. (If the answers don't match up, expect the officer to investigate even harder.)

The officer will probably also ask to be provided with general information about the employer's business and annual revenue. For example, the officer may ask for tax returns, wage reports, and more. It may request information about the number of employees working at a particular location and the extent to which the employer relies on hiring immigrants. The officer may also ask for a tour of the employer's premises or to examine an H-1B employee’s work area.

What If the Visit Goes Badly?

If FDNS doesn’t like what it sees, don’t worry that you’ll be marched off the site in handcuffs. USCIS is supposed to give the employer a chance to respond before it takes any adverse action, such as revoking or refusing to extend your H-1B visa petition. But this would be an excellent time to make sure you have competent legal counsel assisting with interpreting the problem and providing appropriate followup documentation and argument.

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