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In 2004, the Office of Fraud Detection and National Security (FDNS) was created in an effort to detect, deter and combat immigration benefit fraud and strengthen efforts in ensuring benefits are not granted to those who threaten national security or public safety.
What is FDNS?
In 2004, the Office of Fraud Detection and National Security (FDNS) was created in an effort to detect, deter and combat immigration benefit fraud and strengthen efforts in ensuring benefits are not granted to those who threaten national security or public safety.
USCIS, through the “fraud fee”, has engaged outside contractors to conduct thousands of random and unannounced site visits to H-1B petitioners. Many of these visits have occurred after approval of the petition. As part of the program, FDNS officers collect information during site visits to verify information pertaining to petitions that are pending and already approved.
The FDNS consists of approximately 650 individuals, including Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. FDNS has also contracted with multiple private investigation firms to conduct site visits on behalf of FDNS.
FDNS has the broad authority to investigate, but they do not have enforcement authority. FDNS refers all cases of suspected fraud to ICE.
PLEASE NOTE: If you are a member of any social networking websites such as Myspace, Facebook, hi5, Reunion, and others, please read this notice. The FDNS may be a ble to access your social networking page, especially if your information is public.
What is a Site Visit?
Site investigations have increased significantly in 2009. Fewer H-1B filings for the fiscal year due to a downturn economy have resulted in the allocation of more resources to FDNS for broader fraud assessment efforts. As a result, USCIS has implemented the Administrative Site Visit and Verification Program (ASVVP). USCIS has announced that they will conduct 20,000 site visits this year alone for H-1B employers. These investigations are both targeted and random and are designed to collect baseline data on all types of H-1B employers. Therefore, regardless of company size, nature of business, or amount of H-1B employees, an employer should be aware that a site visit is quite possible if they filed an H-1B petition within the last 2 years. There have also been a significant number of reports of FDNS Officers performing site visits at VA hospitals.
These visits by FDNS officers are unannounced and may take place at the employer’s principal place of business and/or the H-1B non-immigrant’s work location (end client site). FDNS Officers do not need a subpoena for the site visit because the regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However, USCIS will provide an opportunity for an Employer to address any adverse or derogatory information that may result from these types of site visits. An employer may request that counsel be present; however FDNS will not reschedule the visit just for counsel, therefore, if requested, counsel can be present via telephone for the site visit.
What Should I Expect During a Site Visit?
During a site visit, the FDNS Officer will ask questions to verify information contained in a specific immigration petition and they will enter the workplace to confirm visually that the visa recipient is employed according to the terms and conditions of the H-1B visa. They will have a copy of the petition, ask to speak with the employer’s representative (the one who signs immigration forms), and will ask questions regarding the employer’s business, locations, number of employees, and the number of H-1B petitions previously filed. They may also request to review company’s tax returns, quarterly wage reports, among other documents to verify that the Employer is a bona fide business entity. Additionally, the Officer may ask questions regarding the H-1B non-immigrant’s title, job duties, work location and salary; and may ask to review the non-immigrant’s most recent pay stub and Form W-2, as well as the Public Access File. FDNS Officers may also inquire about the Employer’s Immigration Counsel.
After interviewing the employer’s representative, the FDNS Officer may request a tour of the facility, take photographs, and may even request to interview the H-1B beneficiary, or his/her co-workers if the H-1B employee is unavailable. The Officer will then ask the beneficiary similar questions to the ones asked of the Employer’s representative: the beneficiary’s job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background, previous employment experience, current address, and information about family members (husband/wife and/or children).
Typically, these H-1B site visits last for less than an hour after the walk thru, documentation gathering and interviews are complete.
What Can I Do To Be Prepared?
Employers should designate a leader from the general counsel’s office or human resources to guide those who could be involved in a potential USCIS site visit. Although a cooperative and courteous attitude is advisable, company representatives may reasonably request more time to provide documents or other information.
Employers should not be obligated to submit to disruptive or unreasonable requests for access to company employees or company property. Additionally, an employer should invoke their right to counsel if the investigator demands to see non-public areas of the employer’s business operations or non-public financial documents, if they question the validity of the documentation presented, or if they appear adversarial.
Practitioners across the country have developed several practice pointers to inform Employers, designated representatives and H-1B Beneficiaries of what to expect and how to react, if an FDNS Officer comes to visit:
Employers should thoroughly review each and every H-1B petition before submission to confirm the accuracy of the information, the beneficiary’s eligibility, nature of the job offer, and the terms and conditions of employment. If facts contained in a previously submitted and approved petition materially change, the employer should file an amended petition with the USCIS immediately, in order to avoid accusations of fraud, or withdraw the petition, if the facts change so substantially that the Employer can no longer comply with the H-1B regulations. Personnel responsible for greeting visitors should be knowledgeable of the company’s immigration program, and should seek the permission of a designated company official before admitting any unauthorized persons (FDNS Officers) to the private areas of the business.
The designated representative should lead the investigator to a conference room or other neutral space for the interview. The FDNS Officer should never be left alone during the course of the investigationIf the business has strict policies against tours and photographs of particular areas, the Employer or designated representative should explain that to the FDNS Officer. The Employer, designated representative, beneficiary, and any other individuals that may come in contact with an FDNS Officer should request the name, title, contact information, and badge number for the site investigator. Additionally, they should not speak with these Officers without a witness present. If the investigator does not have a badge but a business card, the employer should call the 1-800 number on the card to verify that the individual is a contractor conducting site visits for FDNS. After a tour is complete, and/or interview conducted, the Employer, designated representative, beneficiary, or other worker should take the time to accurately transcribe the information that was requested and the documentation gathered. The Employer, designated representative as well as the Beneficiary should have a copy of the H-1B petition submitted to the USCIS, so that each party is fully aware of their rights and responsibilities. The Employer, designated representative, Beneficiary and other workers may stage a mock visit under the supervision and direction of counsel, so as to better prepare the parties for possible interrogation regarding a random petition selected by USCIS’ FDNS. If a beneficiary is at an end-client site, the Employer should notify the end client about the current FDNS H-1B assessment program and the likelihood of a site visit to their facility. Additionally, the Employer should request to be contacted at the beginning of an FDNS visit, if the end-client is so selected. If the Employer is unsure about something, they should NEVER guess, but inform the FDNS Officer that they will follow up with them after they can obtain accurate information. If the investigator asks about multiple H-1B employees in the same site visit, it may be a targeted investigation, and the employer should contact their counsel.
Resources And Context
Although USCIS has confirmed that participation in an ASVVP site visit is voluntary, if all of the employer’s records and information are in good order and the inspectors are not substantially disrupting your business, it may be easiest to answer their questions, and let them complete the site visit. You should always feel free to call us for assistance, but it is usually logistically difficult for one of our lawyers to immediately come to your work site. If you request a lawyer before the site inspectors can continue their investigation, they will normally end the inspection, leave and file a report with ICE stating that you would not allow an inspection without counsel present. These inspectors have no enforcement authority, but ICE does. Therefore, it is usually simpler to provide the information up front showing that the employer is complying with the H-1B rules, rather than have the case go to an agency that is more adversarial.
If you have any questions relating to an FDNS site visit, please do not hesitate to contact our office. Read the September 2008 H-1B Benefit Fraud & Compliance Assessment report here: Benefit & Fraud Compliance Assessment In addition, please see the FDNS Fact Sheet here: FDNS Fact Sheet |
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