USCIS recently announced that its Fraud Detection and National Security (FDNS) Division will expand its site inspection program to include L-1 employers. For the past few years the FDNS has conducted worksite inspections for H-1B employers and is now expanding its inspection program to include L-1 employers. This expansion is a response to a recent report from the Department of Homeland Security’s Office of Inspector General (OIG), “Implementation of L-1 Visa Regulations.” OIG’s report was conducted to address concerns of fraud and abuse within the L-1 program. One of the report’s recommendations is that USCIS conduct mandatory site visits before renewing L-1 petitions for new offices.
USCIS advised that the FDNS would begin conducting L-1 site visits in the first quarter of the 2014 fiscal year (which began October 1, 2013) and in January 2014 reports of L-1 site visits began to surface. It is unclear whether L-1 site visits are restricted to new offices or will include all L-1 employers. It has been noted that the site visits will not include blanket L-1 employers.
Here is what we expect to from the site visits:
· Visits will usually be unannounced;
· Visits will occur after an L-1 petition has been approved;
· The FDNS inspectors will want to inspect the physical work site premises;
· The FDNS inspector will want to meet with L-1 petition signatories or another employer representative as well as the L-1 employee/beneficiary and possibly the employee’s co-workers and managers;
· The FDNS inspector will want to verify the offered salary and job duties to confirm the L-1 employee is working in a capacity that is executive, managerial - L-1A, or requires specialized knowledge - L-1B;
· The FDNS inspector may ask for a copy of the L-1 Petition (if you have not received this from your attorney, please ask for a copy); and
· For L-1 petitions approved for new offices, the FDNS inspectors will want to verify employing entity’s corporate existence which may include reviewing payroll records, tax filings, or other evidence of the employer’s operations.
To prepare for the possibility of a site visit, L-1 employers should notify staff at L-1 worksites of the possibility and put procedures in place so HR managers and administrative staff are prepared to respond to an unannounced site inspection.
If a site inspection occurs, the employer’s representative should ask for the inspecting officer’s name, title and contact information (or just ask for the officer’s business card) and should immediately notify the employer’s attorney so that the attorney may be present during the inspection either in person or by phone. For managers and staff present during the inspection, they should be advised not to provide responses to questions for which they do not know the answers. Do not guess at a response, instead offer to investigate the question and provide follow-up information.
USCIS’ announcement of the L-1 site visit is a reminder that employers should inform their attorneys of any changes to L-1 employment, such as job duties, work location, or placement at a client site, to ensure that any changes are reviewed in case an amendment is required for the L-1 petition.