Under the current administration, workplace immigration investigations are expected to rise. This alert focuses on how employers who sponsor H-1, L-1, and other professionals can proactively implement a plan to prepare for worksite visits conducted by USCIS's Office of Fraud Detection and National Security (FDNS).
Background on Different Types of Workplace Immigration Investigations
Immigration and Customs Enforcement (ICE) and USCIS's Fraud Detection and National Security Directorate (FDNS) are the two primary organizations responsible for conducting immigration-related workplace investigations and site visits. It is important for employers to understand the purpose of each type of investigation.
Under an ICE worksite investigation or "raid," ICE agents may come to a business to investigate a particular employee or a group of people. ICE is required to show a proper warrant to access nonpublic areas of the workplace. Apart from this, ICE also possesses the authority to issue notices to conduct an audit and investigation of an employer's I-9 Employment Eligibility Verification forms and practices.
In contrast, FDNS conducts workplace visits to determine whether an employer is complying with the terms and conditions of approved USCIS immigration petitions, such as confirming the employee's work location, physical workspace, hours, salary, and duties. Unlike in an ICE raid, FDNS officers are not required to have a warrant. FDNS inspections are typically triggered by randomly selected petitions after USCIS adjudicates them and can include visits to the employer's workplace or the foreign national's work location. To date, FDNS has historically focused on H-1B and L-1 petitions. Notably, the new H-1B modernization regulations that took effect in January 2025 strengthen USCIS authority to conduct FDNS worksite visits, including at third-party worksites. Under this new rule, employers refusing to cooperate could face petition denials or revocations.
What to Expect and How to Prepare for a FDNS Worksite Visit
Before a site visit
FDNS officers may or may not give advance notice of a site visit, typically contacting the employer through the information provided in the petition filed with USCIS if any notice is given at all. To ensure a smooth visit, employers are encouraged to walk through potential scenarios with front desk staff and designate a company representative, such as an HR professional, to be available during office hours to handle an announced or unannounced visit. It is crucial that a trained representative of the employer accompanies the FDNS officer throughout the inspection to facilitate the compliance review. Additionally, employers should consider working with immigration counsel to conduct an internal audit of key immigration files, such as I-9 records and Public Access Files (PAFs) to ensure compliance.
During the site visit
During a USCIS FDNS compliance-review site visit, the officer may request to meet with the Human Resources professional who signed the relevant visa petition(s). To ensure a smooth visit, employers should consider contacting their immigration counsel in advance and request the FDNS officer's contact information, including a copy of their badge or ID. The officer may request to review HR documents such as pay stubs of the employee to verify employment, I-9 records, and public access files (PAFs). The officer may also request to interview the employee and the employee's coworkers/supervisor. The company representative should request to be present during the interviews of any of the company's employees.
It is essential for a company representative to accompany the FDNS officer throughout the inspection to address any questions and to ensure that only knowledgeable staff interact with the officer. If there is any uncertainty regarding a question, the representative should defer to the information they are certain of or suggest following up with the officer later. In cases where questions fall outside the scope of the visit, the representative may decline to answer until further clarification is provided.
The officer may ask to see the workspace where the employee works, including making a visit to a home office if the employee performs their work remotely, and may take photographs of the physical workspace(s). Employers may have a difficult time managing unannounced home site visits, particularly since remote work is now a norm for many businesses and industries. Thus, it is essential for employers to advise their employees about these potential visits ahead of time and ensure that employees fully understand their job roles, wages, and workplace details as outlined by their immigration petition.
After the site visit
Following the review, the FDNS officer will record their observations in a Compliance Review Report. USCIS reviews the FDNS officer's report to determine whether the petitioner employer and the beneficiary employee meet eligibility requirements. USCIS will also review the report for any indicators of fraud or noncompliance and may refer the case to U.S. Immigration and Customs Enforcement (ICE) for further investigation if noncompliance or fraud is detected. Typically, an FDNS inspector will inform the employer if the visit was satisfactory and no further action is required.
With the anticipated rise of immigration enforcement and compliance investigations, employers are encouraged to prepare in advance for the possibility of an FDNS site visit.
Partner Praveena Nallainathan and Associate Kamille Go were contributing authors to this client alert.
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.
