USCIS Fraud Alert Targeting L-1 Visa Companies

The United States Citizenship and Immigration Services (USCIS) fraud unit, formally known as the Fraud Detection and National Security Directorate (FDNS), is expected to expand the number of site visits for this year. The U.S. Department of Homeland Security’s Office of Inspector General has analyzed the USCIS L-1 intracompany transferee program, suggesting ways to reduce fraud and standardize adjudications across the program. The USCIS has released the report on August 2013 indicating the expansion of the site visit program.

Fraud Detection and National Security Directorate is responsible for audits which have increased drastically over the last three or four years. Federal authorities plan to visit roughly 30,000 work sites this year to investigate whether everything listed in L-1 petitions is, in fact, correct. In 2010, the government ramped up its anti-fraud efforts, meanwhile the FDNS solely targeted its efforts on reviewing H-1B visas but the corporate community has seen an increase in L-1A and L-1B visa investigations. It is estimated that over 80 percent of the DHS fraudulent cases are now from these site visits, which as a result, the effectiveness of this scheme has led to its increased scope.

The L visa class is utilized to transfer multinational executives and managers from overseas to affiliate companies in the U.S. In essence, employees with special knowledge of the company’s proprietary processes and products may qualify for an L-1B visa transfer. Traditionally, the L visa enjoyed a level of freedom from compliance rules and strict immigration reporting. This has all changed and companies are now aware that USCIS is oppressively targeting managerial personnel. FDNS site visits will be conducted by immigration officers who are specifically trained to conduct all L visa company reviews. Indicated on the petition site visits are to be conducted randomly at the work site and are selected for review. Unannounced visits can apprehend the employer unprepared and the government considers this tool to be an extremely effective way to uncover work-site fraud.

The FDNS site inspector will pursue to interview the foreign national, as well as the individual that signed the relevant visa petitions forms, and the inspector will likely want to take photographs of the work site as part of the compliance review process. The inspector may ask to verify certain documents, such as the beneficiary’s recent paystub, and check whether the parties have recollection of the petition contents in order to determine whether the company is in compliance with the terms mentioned in the said petition.

Company Preparations to Consider Although there has been minimal guidance from USCIS, L-1 employers should be ready for FDNS site visits and should take these visits seriously even though the USCIS site visits is a voluntary program. Companies are urge to identify procedures ahead of time to prepare for an unannounced FDNS worksite visit and alert all personnel of these procedures. The inspector will often meet with the receptionist first and if unprepared it can unwittingly complicate matters by being unprepared. Therefore, procedures should be in place to contact HR if an inspector is in the vicinity in order to restrict his movement to only the designated conference and work area.

Delegating a spokesperson will wipe out any confusion and allow for an efficient review.

Internal reviews of all L-1 employees should be conducted by employers to ensure that their job duties, worksites, and salaries are easily available for review. Employers should also retain complete copies of all I-129 L petitions and documents. Moreover, files must be maintained meticulously in order to avoid inspectors uncovering information. Employers should assure that foreign national employees and their managers are familiar with the content of the L petition and supporting documentation. Companies are encouraged to ensure employees are cooperative with inspectors, and discuss what information should or should not be provided in case such a visit takes place. Even though there are no requirements to file an amended L-1 petition due to minor changes in the employment, employers should be prepared to provide complete and accurate information regarding L-1 employees to site inspectors either via site or in response to follow-up inquiries by an inspector which is usually handled via email.

As previously mentioned, the objective of the site visit is fraud detection. Usually, USCIS will demand confirmation of the petitioning organization is a bona-fide legal entity, that the foreign national employee is in fact working at the location mentioned on the petition, and that the employee’s mentioned duties and compensation information is correct. If an inspector finds discrepancies between the petition and what they visually verified on their visit, they may revoke and terminate an approved petition. After taking in consideration the risks involved, we strongly advise our clients to expect questions about the specific job including the job duties for the position in the U.S. and overseas, the direct and indirect subordinates reporting to the manager, qualifications for the position, and U.S. salary. It is important to recollect that site visits should not be “fishing expeditions”. Even though questions should be narrowed to a specific foreign national and should also be restricted to the legal requirements for the L-1 status and not grasp other employment or benefits issues, a suspect site visit can lead to further inquiries from other government agencies and even worse can often become a public relations disaster if the investigation becomes public or an executive is compelled to leave his U.S. position. For this reason, a plan of action for unanticipated site visits is a must.

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