United States: USCIS Rolls Out Full-Scale Implementation Of L-1 Site Visit Program: Employers Of L-1 Transferees Should Now Set Up Processes To Prepare For Such Visits

Last Updated: July 29 2014
Article by Barbara Chin

U.S. Citizenship and Immigration Services' (USCIS) Fraud Detection and National Security (FDNS) Directorate has recently begun implementation of an L-1 site inspection program in response to an August 2013 report released by the U.S. Department of Homeland Security's Office of Inspector General (OIG) titled "Implementation of L-1 Visa Regulations." The report is available at http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-107_Aug13.pdf. The L-1 site visit program is funded by the $500 Fraud Fee required for the initial filing of all L-1 petitions.

The OIG report was issued in response to concerns over fraud and abuse in the L-1 visa program, and in particular the new L-1 office petitions and L-1 extensions. The OIG strongly recommended that USCIS make site visits a mandatory requirement before renewing L-1 new office petitions. In response to the OIG report, USCIS has started conducting post adjudication domestic L-1 compliance site visits and expects to expand these visits to all individual L-1 petitions.

At this time, site visits will not apply to L-1 blanket petitions or beneficiaries as USCIS currently has no mechanism to identify L-1 admittees under the L-1 blanket program. However, if your company has filed an L-1 extension petition on behalf of an employee who initially came to the U.S. pursuant to an L-1 blanket petition, be prepared that you may have a site visit relating to that employee.

How Are Site Inspections Chosen?

USCIS has indicated that it is going to start its L-1 site visits by performing post-adjudication approval site visits of L-1A petition extensions that were filed with a USCIS Service Center. It is unclear at this time when and if the L-1 site visit program will be expanded to include L-1B and blanket L-1 petitions. The site inspections are generally chosen at random, and performed without notice. The site inspectors are not authorized to make decisions on immigration benefit petitions or applications. However, if the site inspector has a concern, he or she will inform the agency about the concern, which could result in further communication by USCIS regarding the particular case.

Who Comes Calling on Behalf of the USCIS?

The site visits are conducted either by USCIS employees or third-party contractors hired by USCIS to conduct the site visits. It is important to verify and record the identity of anyone claiming to be a government representative or agent. If you experience a site visit, the first step is to politely request to see the representative's identification to verify the legitimacy of the visit.

Will We Get Advance Notice of a Site Visit and Can Our Attorney Be Present?

The procedure varies. Some companies are given advance notice of a site visit, and it is scheduled at the mutual convenience of the USCIS site inspector and company representative, in which case there is time to arrange for counsel to be present in person or by phone. More frequently, the site inspector arrives without warning.

As site visits are frequently unannounced, employers should educate their receptionists at all worksites about the possibility of USCIS site visits and should have a procedure in place to contact the employer's primary in-house immigration manager. Once the designated company representative greets the site inspector and ascertains the purpose of the visit and which employee he or she is checking on, there should be time to make the site inspector comfortable in a waiting area or conference room while you contact counsel and obtain the relevant file(s).

What Is the Government's Objective in Conducting Site Visits?

Typically, the site inspector needs to confirm that the employer is a bona fide organization that knowingly filed the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition. Typically, the site inspector is there to:

  • Verify the existence of the petitioning U.S. employer
  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS
  • Verify the identity of the foreign worker employee
  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS and review personnel documents such as payroll records
  • Confirm the foreign worker employee's work location, employment workspace, hours, salary and duties
  • Speak directly with the L-1 employee as well as with the company representative

What Questions Will the USCIS Site Inspector Ask?

In most instances, the investigator will arrive with a copy of the petition and ask to meet with the company representative who signed the visa petition. (Often the person who signed the immigration paperwork is not available in person at the worksite in question. If this is the case, the task should be delegated to the designated company representative for that worksite. The company representative who signed the paperwork can participate by phone, if convenient.) The inspector will ask for basic information about the employer, such as the year of incorporation, locations of its offices, number of employees, and hours of operation. He or she will ask about the employee's title, job duties, and worksite and ask to see the office or cubicle where the employee works. He or she may also ask to be allowed to take photographs of the interior of the worksite. The inspector may also ask for the most recent pay statement and last W-2 issued to the employee to confirm that the employee is being paid the rate of pay promised in the petition of hire.

Employers of L-1 visa holders may face additional challenges as an L-1 visa holder is permitted to and may only work intermittently in the U.S., may be on a foreign payroll, may be assigned to a client (third-party) site, or may have changed work locations to another branch office of the L-1 petitioner. The employer must be able to articulate and explain to the satisfaction of the site inspector that these situations are permitted by the L-1 regulations. These site visits can be nerve-racking and cause anxiety to L-1 employees and to the company employees who are confronted with an unannounced site visit. Having a clear policy in place to deal with future site visits goes a long way towards alleviating such anxiety.

One of the most challenging aspects of the L-1 site visit is verifying that the L-1 employee is "working for the employer in the position that was the subject of the visa petition." As we know, titles and job responsibilities for employees are constantly changing as business conditions are constantly changing. Employers must file amended L-1 petitions whenever there is a significant and material change in the L-1 employee's job duties. In the event of an L-1 site visit, if the employee's job has changed, the company representative must be able to explain why a change in job title and job duties was permissible without the filing of an amended L-1 petition or be prepared to provide a copy of the amended L-1 visa petition.

Update for I-9 and E-Verify Compliance and Inspections for Intermittent Employees Remaining on the Foreign Payroll

In addition to the site visits that USCIS is conducting to verify the information contained in visa petitions filed by employers on behalf of their foreign workers, the Immigration and Customs Enforcement (ICE) division of DHS conducts targeted inspections of employers' Form I-9 records. Indeed, in 2013, ICE issued Notices of Inspection (NOIs) to 3,100 businesses across the U.S. The number of ICE I-9 inspections has tripled in a 3-year period, and all signs point to a continuing increase of I-9 inspections.

As ICE said in the announcement it made regarding this initiative, "Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws." ICE is committed to inspecting Forms I-9 to ensure that employers are in compliance with their I-9 obligations and that their employees are authorized to work in the U.S.

I-9 inspections are typically targeted as a result of leads and tips. When an employer receives an NOI, it usually has only three days' advance notice to prepare for the inspection, or less if ICE presents a search warrant. It is critical that employers routinely conduct internal I-9 self-audits and engage in regular and systematic training of personnel with responsibility for I-9s to ensure that their I-9s are in order.

Mintz Levin is available to conduct I-9 audits and training at your offices and through webinars, which can reach all employees responsible for I-9 compliance throughout a multi-office organization.

Be Prepared

USCIS site visits and investigations frequently come without warning, and non-compliant employers are subject to serious fines and penalties. Accordingly, it is critical that your immigration files are in order and that you are prepared ahead of time:

  • Ensure that your company has a designated point-of-contact in the event of a site visit, and a back-up person to assume this function if the designated person is out of the office on the day of the visit, and ensure that the staff are aware of who the contact persons are, and what the company protocol is, for escalating the site visit information to the appropriate company representatives.
  • Ensure that your immigration files are in good order, including (1) copies of all visa petitions and approval notices; (2) up-to-date personnel records showing work location and salaries; (3) H-1B Public Inspection Files; and (4) I-9s. These files and electronic systems should be reviewed and updated annually. Mintz Levin can assist with the audit of your files.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions