A Site Visit? What the L?

by Elizabeth Brettschneider

Site visits aren’t just for H-1Bs anymore. At the June 2014 American Immigration Lawyers Association (AILA) Annual Conference in Boston, it was announced that the typical site visits many H-1B employers have grown accustomed to are now being extended to companies who employ L visa holders. (Manny discussed the other issues covered at the conference.) We’ve already heard reports of this phenomenon from some employers and their immigration attorneys.

To give these site visits some context, in 2009 the Department of Homeland Security’s Office of Fraud Detection and National Security (FDNS) substantially increased investigations of employers who file H-1B petitions. Since they had allotted funds from the $500 fee each employer pays for their new H-1B employee, they ramped up their visits to the H-1B petitioning companies in order to verify the information provided in the H-1B petitions.

The visits associated with this program are usually unannounced. The investigators will show up at either the employer’s headquarters as listed on the H-1B petition or the address listed as the H-1B employee’s work location. The FDNS officers should present identification that they are with the Department of Homeland Security (DHS) and specify the foreign national with whom they wish to speak. (Many times these officers are contracted by DHS to perform these site visits and are not themselves government employees.) In most cases, the officers will ask to speak to the company representative that signed the H-1B petition as well as the H-1B employee. If the company representative is not available, they will ask to speak with another company representative such as a human resources manager.  

The investigators will usually ask general questions about the company such as the number of employees at the company including specifically the number of employees under H-1B status, what the company does, and other questions about the company. These questions or similar ones are included on the H-1B petition submitted to US Citizenship & Immigration Services (USCIS), so it’s important to ensure that this information on the H-1B petition is accurate at the time of filing, and furthermore that the company notifies their immigration attorney of any amendments or changes to the condition of employment. (These amendments should also be kept on file.)

The investigators will also typically ask questions about the H-1B employee, including about job duties, hours, salary, and work location—again all questions included on the H-1B petition. The officers may also ask to see documents confirming this information including the employee’s pay stubs or W-2s. The officers will likely take photos of the company work space and company signage and want to see where the employee sits—i.e., the employee’s desk or work area—to verify the H-1B petition was not fraudulent.  

Although all the details of how the site visits will work in the L context have not been revealed by USCIS, our information says that they will be very similar to the H-1B visits. We anticipate that in the L context the officers may also ask to confirm the employee’s managerial/executive status (L-1A) or their specialized knowledge (L-1B).

This practice is being extended to L-1 visas because DHS is responding to an August 2013 report from DHS Office of the Inspector General which looked at the potential for fraud in the L-1 visa program—especially new office petitions. The report recommended that there be site visits to deter abuse and fraud.  

What can employers with H-1B and/or L-1 employees do to be best prepared for these visits?  

  • Make sure that front office personnel are prepared for a potential visit from an investigator. Make sure they know the protocol to contact the H-1B or L-1 petition signatory or company representative. They should also be instructed not to give out the company information and instead let the company representative handle that.  
  • Both the company signatory and H-1B or L-1 employee should have thoroughly reviewed the petition submitted on their behalf and be familiar with the information contained in the petition, as this is the information the investigator will have;
  • Keep copies of all H-1B and L-1 petitions and paperwork filed (as well as any amendments to the petition) for easy access in the case of a site visit;
  • Notify the company’s immigration attorney of significant changes to company information, including change of location, as well as any changes to terms of employment for H-1B or L-1 workers (including termination of employment or transfer back abroad) to ensure if necessary the petition is amended with USCIS as appropriate;
  • Don’t guess at answers to the investigator’s questions. If the employer doesn’t know, they should request that they get back to the officer with the accurate information.  

Overall, with proper preparation these site visits can be minimally intrusive and go smoothly. As long as companies remain diligent about maintaining accurate records and keeping their immigration attorney informed of updated company information or changes in employment for the H-1B or L-1 individual, the site visits should not be too much of a disruption to a company’s day-to-day functioning.   

UPDATE: When I visited the Vermont Service Center in October, they estimated that only several hundred L site visits had been conducted so far at that point. They said that they were seeing similar results to the H­-1B site visits—i.e., most officers were satisfied with the legitimacy of the petitioner and didn’t initiate further investigation. We will provide updates if we receive new information on L site visits.