USCIS Conducting H-1B Site Inspections

by Jackson Lewis

The U.S. Citizenship and Immigration Services is deploying contract inspectors to perform thousands of on-site inspections of petitioning employers who have sponsored H-1B specialty occupation visa employees.  The inspection program is funded through the mandatory $500 “Anti-Fraud Fee,” one of the government fees employers pay when sponsoring an H-1B employee.  These inspections represent a new facet in Department of Homeland Security enforcement efforts, following closely the issuance by Immigration and Customs Enforcement of 650 I-9 audit notices during a single week in June 2009.  Initially, reviews are slated to be conducted in 28 cities with employers selected randomly.

According to USCIS, site visits will be conducted without advance notice and will focus on identifying fraudulently filed H-1B applications.  Inspectors will verify that the company is an actual operating business entity and that the foreign worker being sponsored is a legitimate employee.  In addition, inspectors will look for specific types of fraud, including foreign workers who falsify applications, claims by foreign workers of employment with companies with whom the worker is not employed, and companies that falsify applications, including salaries.  Reported accounts indicate that inspectors will want to meet and interview the H-1B worker, confirm the employee’s identity, and meet with human resources personnel to confirm specific details regarding the H-1B worker’s employment. 

The initiation of fraud enforcement measures by USCIS underscores DHS's stated priority of focusing on employers to identify immigration violations.  As enforcement efforts focus increasingly on employers, companies must ensure they maintain policies for compliance with immigration laws and regulations.  For employers with H-1B employees, for example, the maintenance and accessibility of required documentation in a Public Access File are critical. 

A Public Access File should include a copy of the certified labor condition application, proof of the prevailing wage determination, copies of the employer’s compensation system or pay scale that was used to determine the actual wage being paid to the employee, materials used to satisfy employee/union notification requirements, a summary of benefits offered to U.S. workers who are in the same occupational classification as H-1B employees, and additional documents in special situations.  Documentation must be retained for one year beyond the last date on which any H-1B employee was employed. 

In addition to a Public Access File, it is also important that human resources personnel verify and preserve consistency between the company’s visa petitions and its personnel files.  Personnel should be able to confirm readily the employee’s date of hire, job title, work location and salary.  If your company receives an on-site visit, be sure to ask for identification and inform your immigration counsel as soon as possible.