Tag Archive for: FDNS Site Visit

What a Company Needs to Know That Hosts but Does Not Employ Skilled Nonimmigrant Workers

I would like to share my article, Due Diligence Considerations For Companies Contracting With Vendor Service Providers, which appeared in the New Jersey Lawyer, October 2011 issue. This is an emerging area and it behooves corporations that contract with companies for skilled nonimmigrant workers on H-1B, L-1 or B-1 visas to know more about whom they are getting on board. Indeed, exercising greater due diligence can be a win-win for all the parties involved – the petitioning company, the end user client company and the nonimmigrant worker. In addition to protecting itself from potential liability, the client company by cooperating with the petitioning company on a number of fronts can also ensure a swift and more firm approval of the visa.

Many corporations in need of specialized skilled workers who are in short supply do not sponsor foreign nationals for their work permits. Instead, these companies contract with other entities that employ skilled workers, who in turn are then assigned to the client company for a specific project. This is especially true with information technology (IT) services, where foreign nationals on temporary visas predominate. While the obligations for a sponsoring employer are onerous, it is important for the end user client company to be vigilant to ensure that foreign national workers assigned to a company are working under the appropriate visa categories. In the event that the end user client has knowledge or encourages activities not authorized under these visa categories, there is potential for the company to be ensnared in criminal liability.  Even short of criminal liability, it is important to make sure due diligence has been done to avoid being caught up in an embarrassing investigation against a partner company.

Here are a few examples of how an end user company can get unwittingly caught up with liability. If the end user company urgently needs software engineers through its IT contracting company for a project, a manager within the end user company may be requested to write a let­ter as a client of the contracting compa­ny to justify the need for its employee overseas to visit the U.S. on a B-1 visa. If this letter indicates that the software engineer is required for meetings, or to conduct an analysis of the project to be subsequently worked on overseas (a per­missible B-1 activity), but the actual pur­pose is for the engineer to actually par­ticipate in programming and working on the solution in the U.S., it may come back to haunt the end user company if there is a criminal investigation against the IT contracting company. Therefore, when drafting such a letter, it is important to ensure that the proposed activities discussed in the letter are per­missible B-1 activities, and when the foreign national arrives, he or she engages in activities that are consistent with the listed activities.

Similarly, under a January 8, 2010, USCIS guidance memorandum by Donald Neufeld, concerning employer/employee relationship in H-1B petitions, especially where an H-1B employer places employees at a third-party site, it is important for the sponsoring employer to demonstrate that it exercises the right of control over its non-citizen employee if he or she is placed at a third-party client site. In order to win an H-IB approval, the petitioning employer generally requests confirmation from its client company about the H-IB worker’s assignment arrangement at its location, and that it is the employer who actually exercises the ultimate control over the employment. The end user client company, often through lay­ers of middlemen vendors, must take care that the letter accurately describes the arrangement. On the one hand, the issuance of such a letter confirms that the company is not the employer, thus eliminating a situation where it may be held liable as an employer for wages and benefits. On the other hand, there may be situations where the petitioning enti­ty exercises no control over the H-IB worker’s employment, and the person reports directly to a manager with the client company rather than the petitioner. In the post Neufeld Memo era, client companies may also want to cooperate with the petitioning company to allow a representative to visit the client location to evaluate its employee’s performance and to provide regular assessments and feedback of the nonimmigrant worker’s performance to the petitioning employer even while the immediate supervision lies with the client company.

Care should, therefore, be taken not to inadvertently misrepresent the nature of the assignment at the company.  Moreover, the petitioner must demonstrate that the position being filled by the H-1B worker at the company requires a bachelor’s degree or higher in a specialty.  Here too, the client must take the utmost precautions to not misrepresent the minimum requirements of the position.  Some end user companies choose not to issue letters as they are not obligated to do so. If however they really need the services of the skilled nonimmigrant worker for a project, it would be more prudent for them to cooperate with respect to such a letter – as well as confirming who exercises immediate supervision and ultimate control – as that would allow the nonimmigrant to win the visa approval while giving the client company an opportunity to also conduct due diligence regarding the hosting of such an individual.

Moreover, if an H-1B worker is assigned to a client location, DOL regulations require that the petitioning employer must have posted notice at two conspicuous places where the work is actually performed informing about the occupational classification, wages offered, period of employment and the work location, among other things. While the petitioner is solely responsible for posting the notice at the physical location, it would behoove the responsible officer at the client company to cooperate with the posting in order to ensure that its contractor is fully compliant with the attestation requirements.

Finally, the USCIS’s fraud detection national security division may also pay a “friendly” surprise visit to the client company to ensure that the work location and other terms of employment are consistent with the H-1B petition. Similarly, specialized knowledge workers on L-1B visas at client locations must satisfy the FDNS investigator that they are under the “control and supervision” of the petitioning company, and this person should also be implementing a product or application of the contracting company or deploying a methodology that is unique to the petitioning company. Moreover, any letters issued by the client company can also be verified via a surprise call from the State Department when the foreign national applies for the nonimmigrant visa at the US consulate.

By exercising due diligence, a client company can avoid an investigation, which even if not targeted against it can still generate bad publicity, as well as potential liability. More important, by cooperating with the petitioning company, the nonimmigrant visa petition can withstand scrutiny while it is being processed, and can potentially result in a quicker and surer approval, resulting in the skilled nonimmigrant worker being able to come on board to work on a critical project for the client company.

IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS

By Myriam Jaidi

U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate.  The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.”  Visits are conducted pre- and post-adjudication on randomly selected applications and petitions.  Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status.  Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear.  There is a great deal riding on these site visits:  if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition.  If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice?  Nothing earth shattering:  Be prepared.  If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a site visit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany the officer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary.  The officer will usually want to speak with the signatory and the beneficiary.  If those individuals are not available, the officer should be asked to provide contact information for a follow up discussion.  The officers may also want to verify details with the signatory or beneficiary by phone or via email after conducting the site visit, if they are not available at the time of the visit.  If the beneficiary is not available at the worksite, for example because he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocation could result.  If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees are aware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include:

To the petitioner, about the petitioner

  • Verify the signatory of the petition, his or her position within the organization
  • Whether the signatory is aware that an H-1B petition was filed for the beneficiary
  • Check the ID of the petitioner’s signatory
  • Total number of employees at the petitioner’s company
  • Number of employees on H-1B status
  • Number of employees with LPR status
  • Gross annual income
  • Net annual income

To the petitioner, about the beneficiary:

  • Start date with the organization
  • Current salary
  • Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

  • Name of the employer/petitioner
  • Offer letter for the position with the petitioner
  • W2 for the most recent year
  • Most recent paystubs
  • Description of job duties
  • Photocopies of qualifying degrees
  • Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

  • Describe the relationship between end client and the petitioner
  • Does the end client anticipate receiving the services of the beneficiary?
  • If the answer is yes, the end client may be asked to provide
    • beginning and ending dates of beneficiary’s employment;
    • job description/duties;
    • beneficiary’s physical work location
    • project description of the task to which beneficiary has been assigned; and
    • name and title of the beneficiary’s supervisor
  • Is end client aware that the beneficiary is an employee of petitioner?
  • Who assigns work to the beneficiary?
  • Who does the end client contact about employee related issues for the beneficiary?
You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary.  We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and  advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition.  After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary.  As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings.  When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them.  Where is the attorney in this process?  Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process.  Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices).  Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored.  USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement:  “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.”  Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.