Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

The DREAM Act (Development, Relief, and Education for Alien Minors) is a bipartisan bill that has failed in Congress time and again since its initial proposal in 2001. The basic tenets of the Act would provide conditional temporary residency to certain illegal immigrants if the individuals are of good moral character, have graduated from U.S. high schools, have arrived in the United States as minors and have lived in the country continuously for at least five years.

On June 15th, President Barack Obama announced he will implement part of the DREAM Act. The administration is going use its prosecutorial discretion to not prosecute those who might be eligible under the Act. Instead, USCIS will focus on the removal of foreign nationals (“illegal immigrants”) that pose a greater threat (e.g., those with a criminal background).

Candidates for the new initiative must meet the following criteria:

1) Have entered the U.S. before age 16 and be less than 30 years old
2) Have been present in the U.S. for five years as of June 15, 2012
3) Have maintained continuous residence in the United States
4) Have not been convicted of one serious crime or multiple minor crimes
5) Be currently in school, have graduated from high school, have a GED, or have enlisted in the military

Qualifying individuals may be granted deferred action (i.e., will not be removed) by ICE or USCIS and could become eligible for work authorization cards. Although, this is not technically the same as “legal status” or a path to legal status or permanent residency, employers might feel a significant impact because it will expand the pool of available younger workers. In particular, businesses in the hospitality, restaurant, retail and agricultural industries might see increases in eligible workers.

The official press release from DHS can be found here http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

Jackson Lewis will continue to follow developments on this initiative and its effect on employers.
 

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AUTHORS: Kevin Lashus and Robert Seiger

USCIS is seeking public comments on its proposed revised Form I-9 (Employment Eligibility Verification form). As all employers in the United States are aware, employers must complete the Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

Highlights of the proposed changes include:
• The 5-page form and instructions would expand to 9 pages, with nearly 6 pages of instructions
• “Employers” is defined in the instructions
• “Time of hire” is redefined as “no later than the first day of work for pay”
• Last name has been clarified to include “two last names or a hyphenated last name”
• Employees are instruction to note, “N/A” if they have no maiden name
• P.O. boxes are no longer acceptable in the address field
• An email and telephone number field has been added (to assist DHS in contacting the employee)
• The citizenship or immigration status boxes have been defined
• A new set of instructions for minors and certain disabled employees
• The Thursday Rule (providing for completion of section 2 prior to close of business on the Thursday after a Monday hire) is identified and authorized
• Specific instructions are provided to employers hiring foreign students
• Employers are authorized to receive expired documents and receipt notices is certain instances
• Attempts by employers to use section 3 to reverify U.S. citizens and Lawful Permanent Residents is strictly prohibited
• The election as an “alien authorized to work” has been greatly expanded to include separate sections for alien registration/USCIS number identification (limited to 9 digits) AND for aliens presenting an I-94 (expanded to 11 digits)
• An alien authorized to work utilizing an I-94 is also required to include his/her foreign passport number and country of issuance
• The list of acceptable documents has two significant changes: the List A foreign passport/I-94 combination is divided into subparts, and the List C Social Security Card section now provides examples of the annotations that make the card invalid for I-9 purposes
 

The current I-9 form and instructions are accompanied by a 63-page manual. The new form and instructions likely will come with a longer manual, which has yet to be released.

Employers interested in providing comments are encouraged to contact counsel to discuss how to effectively express how the proposal will affect their ability to conduct profitable business. Comments must be submitted by May 29, 2012.
 

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At a time of increasingly aggressive enforcement of immigration laws, the California Service Center of the U.S. Citizenship and Immigration Service has notified certain stakeholders that the USCIS will be ramping up “administrative site visits” in connection with H-1B petitions filed by U.S. employers. This is an effort at enhanced enforcement in response to the H-1B Benefit Fraud Analysis report released in September 2008. While thus far, this is the agenda of the California Service Center, we can expect to see similar moves from other service centers. Employers should take the opportunity to prepare for what to expect of a site visit.

The USCIS advised that petitioners should be prepared for administrative site inspectors to ask questions that pertain to any aspect related to the terms and conditions of employment, including job duties, salary, work location, and work hours. Further, inspectors regularly would ask whether the employee has paid any fees in association with the filing of the H-1B petition. There are specific requirements regarding who may legally pay H-1B fees.

Site inspections typically occur at the work location listed on the Form I-129 petition. If an employee will be working anywhere else, the employer should include an itinerary for all worksites and ensure the Labor Condition Application corresponds to all locations as necessary.

Inspectors typically will request to speak to a company representative (i.e., the signatory of the petition or the listed contact person) and the beneficiary employee. The inspector also may ask to review documentation related to the petition, as well as to visit the employee’s desk or workspace.

Site inspections are made on a random basis and may occur more than once. Employers should prepare in advance by having on hand relevant information, such as where the employee works, where the petition documents are located and, of course, how to get in touch with counsel, if necessary.
 

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Author - Sujata Ajmera

The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization, recently released an analysis of U.S. Citizenship and Immigration Services (USCIS) data on the number of H-1B and L-1 petition denials issued by the Agency in each fiscal year from 2003 to 2011. The results reveal a significant increase in the number of H-1B and L-1 denials beginning in FY2008 and continuous increase through FY2011, with a significant spike in FY2009, during which every visa category had a dramatic increase in denials.

The denial rate for L-1B visa petitions increased from 9% in FY2003 to 27% in FY2011. The denial rate for H-1B visa petitions increased from 12% in FY2003 to 17% in FY2011, peaking at 29% in FY2009. The data also shows that if a company received approval of its visa petition, it likely had to first overcome a Request for Evidence (RFE). In the past, RFEs were issued when USCIS case officers needed clarification or additional information to adjudicate a petition. Based on the statistics, it appears either the majority of employers have abruptly stopped filing complete petitions, or, more likely, USCIS has decided that they require more information than actually set forth in the regulations to adjudicate a case.

Most alarming is the increase in the number of RFEs issued for L-1B and L-1A cases, in particular. RFEs for L-1B cases more than tripled from FY2003 to FY2011, from 16% to 63%. Similarly, RFEs for L-1A cases went from 12% to 51% over the same period. Employers now are statistically guaranteed that one in every two L-1 petitions they file will be issued an RFE.

As there has been no significant change in the regulatory criteria for H-1B and L-1 status approval, this increase in petition denials and RFE issuance is an indication that USCIS adjudicators have changed their internal standards of review to make it more difficult for skilled foreign nationals to obtain work authorization in the United States.

The data also shows that USCIS denies more L-1B petitions for Indian nationals than any other country. Whether this is indicative that the Agency has targeted Indian nationals is unclear; however, employers who seek skilled Indian employees should be prepared for additional scrutiny. L-1 visa issuance declined at U.S. Consulates in India in FY2011, but actually rose overall for the rest of the world.

The NFAP study confirms what many U.S. employers already know: it is now more difficult than ever to hire or transfer critical foreign national employees whose presence is required to ensure continued product development and profitability. Jackson Lewis attorneys have experience in addressing and overcoming RFEs and visa denials on behalf of U.S. employers. We will continue to monitor and report USCIS trends and policy changes.
 

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AUTHOR: MAGGIE MURPHY 

Apologizing for inadequate outreach on its new protocol, the Citizenship & Immigration Service (CIS) has requested feedback on its “surprise” policy – implemented September 12 – to send original approval notices to Petitioners and Applicants directly, rather than the attorneys of record. Attorneys of record with properly filed Forms G-28 now receive unofficial “Courtesy Copy” approval notices. CIS said its new policy will ensure the original notices reach the Petitioner or Applicant and combat possible immigration service scams.

A number of immigration attorneys, including those from Jackson Lewis, complained of the sudden implementation of the policy and challenged the legality of such implementation. The regulations clearly state that notices shall be given to the attorney or representative of record.

When an attorney is hired to assist with an immigration filing, a number of safeguards are attendant to the attorney-client relationship, including:

• Document Integrity and Security – all notices and critical, original documents should be mailed to the attorney so that they can be verified to ensure the case was approved and the notice printed properly. The attorney is in the best position to advocate on behalf of the client to get any errors corrected. Similarly, most immigration attorneys are also responsible for case management tracking and other tasks that minimize the risk of extreme case delays and complications.

• Issues with I-9 Completion and Driver’s License Requirements – foreign nationals working in the U.S. in nonimmigrant status (e.g., H-1B, L-1, and O-1) are often required to show their original I-94 document when completing various state and federal applications. When a change or extension of nonimmigrant status is requested, the original approval notice contains the foreign national’s new I-94 card. Therefore, mailing to the wrong address can cause enormous delays and problems.

• Requests for Evidence Timing Deadlines – case processing often involves “Requests for Evidence (RFEs)” from the CIS, in which the adjudicating officer asks for information and documentation to supplement the case filing. RFEs are issued under strict processing deadlines, normally only 30 – 90 days. Failure to respond can result in a delay of the case, which can be detrimental to the foreign national’s status. Thus, RFEs “lost” in employer mailrooms or apartment buildings or temporary residences have resulted in employees losing work authorization and status.

Jackson Lewis is working with the American Immigration Lawyers Association (AILA) to persuade the government to suspend the new policy.

CIS said it will review all comments, as well as examples sent in through its Office of Public Engagement about this policy, but the policy stands.

Jackson Lewis’ immigration team represents national employers of all sizes in various industries. We are experienced in quickly implementing filing strategies for our employer-clients who are filing I-129 and I-140 petitions on behalf of foreign national employees. Employers should alert their attorneys of any mail from the Department of Homeland Security or CIS immediately.
 

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The Department of Justice has announced a record anti-discrimination settlement agreement with Farmland Foods, Inc. involving allegations that the company engaged in a pattern or practice of discrimination during the I-9 process. According to the DOJ, Farmland, a major U.S. producer of pork products, allegedly required newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Illinois plant to present specific and sometimes extra work-authorization documents not required by law. Farmland has agreed to pay $290,400, the highest civil penalty in an anti-discrimination settlement. It also has agreed to train its human resources personnel about proper I-9 procedure and provide periodic reports to the DOJ for monitoring purposes.
 

According to the lawsuit filed on behalf of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Farmland extended a conditional offer of employment to a naturalized U.S. citizen on December 2, 2009 and asked the new hire to complete the I-9 form. At that time, the individual presented a driver’s license (List B) and an unrestricted Social Security card (List C). After the employee started orientation, Farmland (through its agent) submitted the individual to E-Verify and received a tentative nonconfirmation (TNC). Rather than having the employee go through the TNC process (which would have involved talking to a DHS representative or visiting SSA – actions not involving the employer), Farmland allegedly asked the employee to bring in her naturalization certificate and/or other documents to prove her citizenship. While it’s not clear from the complaint how the employer reacted, eventually the OCS was contacted.
 

According to the complaint, Farmland routinely has engaged in a pattern of discriminatory documentary practices in its Monmouth plant since at least December 1, 2009. Between December 1, 2009 and January 26, 2011, the OSC alleged that Farmland required non-U.S. citizens to specifically produce a “List A” document issued by the Department of Homeland Security in addition to other documents. Employees attesting to be a “lawful permanent resident” for example, would be required to produce an I-551 permanent resident card and employees attesting to be “an alien authorized to work” would be required to produce an I-766 employment authorization document. Meanwhile, the large majority of U.S. citizens hired were allowed to produce varied List B and List C documents without restriction.
 

According to the OSC, Farmland:
• Required 100% of non-U.S. citizens to produce a “List A”, while only 4.9% of U.S. citizens were required to do so.
• Required 100% of non-U.S. citizens to produce identity and work authorization documents in addition to a “List A” documents during the Form I-9 Employment Eligibility Verification process, while only 1.6% of U.S. citizens were required to do so.
• Required 88% of the non-U.S. citizen employees to produce a List A, B, and C document, while only 0.8% of the U.S. citizen employees were required to do so.
 

Interestingly, for the non-U.S. citizen employees, Farmland only recorded the List A document on section 2 of the Form I-9 and attached photocopies of the additional documents to the Form I-9. Thus, on the surface, this would not have appeared to be over-documentation. Regardless, Farmland’s demand for specific or excessive documents to establish work authorization clearly violated the anti-discrimination provision of the Immigration and Nationality Act (INA).
 

The lesson learned from this case is that it is not enough to have the I-9 boxes completed correctly. The process behind the I-9 is complex and should be examined. Over-documentation is a serious issue that the OSC will pursue. Experienced compliance counsel should be consulted to ensure your organization is in compliance with all applicable regulations.
 

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As more and more states pass legislation mandating use of E-Verify, a federal E-Verify mandate seems inevitable. Recently, Representative Lamar Smith introduced the first attempt at such a federal mandate, the Legal Workforce Act.

The Legal Workforce Act would preempt existing state E-Verify laws and repeal the current paper Form I-9 system, replacing it with a completely electronic system. It would be phased in as follows:

• Employers with 10,000 or more employees: 6 months after enactment
• Employers with 500-9,999 employees: 12 months after enactment
• Employers with 20-499 employees: 18 months after enactment
• Employers with 1-19 employees: 24 months after enactment

The bill also includes special provisions for agricultural employers, phasing those employers in after 36 months and treating seasonal workers as existing employees, as opposed to new hires. As with the current rules, the bill would grant employers safe harbor from prosecution for employing unauthorized workers if they used the E-Verify program in good faith.

In introducing the bill, Representative Smith cited high unemployment, voter support and strong bi-partisan support. He is quoted as saying, “With unemployment at 9%, jobs are scarce. Despite record unemployment, seven million people work in the U.S. illegally. These jobs should go to legal workers." It remains to be seen whether Smith will get the bi-partisan support needed to pass the bill. Presently, it still sits in committee.
 

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Written by Nicola A. Prall

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E-Verify: the Good, the Bad, and the Unresolved

The United States Citizenship and Immigration Services (USCIS) has recently released an independent report of the E-Verify system, highlighting the successes, failures, and remaining challenges that face employers face today.

The Good

USCIS reduced the Tentative Nonconfirmations (TNCs or mismatches) from 8% between June 2004 and March 2007 to almost 2.6% in fiscal year 2009. TNCs result when the information from an employee’s Form I-9 does not match government records and E-Verify indicates the case may require additional action.

Additionally, USCIS data indicates that about 97.4% of almost 8.2 million newly hired employees were immediately confirmed as work authorized by E-Verify during fiscal year 2009, compared to 92% during June 2004 through March 2007.

Conversely, about 2.6% of newly hired employees, or over 211,000, received either a Social Security Administration or USCIS TNC, including about 0.3% who were determined to be work eligible after they contested a TNC, and about 2.3% who received a Final Nonconfirmation (FNC) because their employment eligibility status remained unresolved.

The Bad

Despite the reduction of TNCs overall, it appears that erroneous information is still a way of life. Employee information, like the E-Verify system itself, is constantly being updated and changed. Also, it is not uncommon to have misspellings or other name variations for first or last names. In these instances, TNCs may result because the employer is uncertain how exactly to enter the name into the system. According to USCIS, of the TNCs resulting from name mismatches in fiscal year 2009, approximately 76% were for citizens and 24% were for noncitizens. USCIS has included information on its website to help employers enter various name combinations to reduce some of these TNCs.

The Unresolved

Over the past two years, USCIS has more than doubled the number of monitoring and compliance staff overseeing employers’ use of E-Verify. Apparently, however, the staff still lacks the appropriate technology to discern instances of suspected employer misuse easily. According to senior E-Verify program officials, such capabilities will be addressed by fiscal year 2012, through an estimated $6 million advanced data system. USCIS expects this system, known as the Data Analysis System, to automate about 80% of the Monitoring and Compliance Branch’s workload.

It looks like E-Verify will be with us for the foreseeable future. The fiscal year 2010 DHS Appropriations Act reauthorized the E-Verify program through September 30, 2012, and provided USCIS with $137 million for program operations. Employers must prepare themselves by implementing appropriate policies, procedures, and technology to address the potential pitfalls of an erroneous TNC or FNC, as well as other challenges, such as identity theft and discrimination.
 

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USCIS has released its new E-Verify User Manuals for Employers, Employer E-Verify Agents, and Federal Contractors. E-Verify is the online verification system that complements I-9 employment eligibility review and allows employers to check the legality of their workforce. The manuals provide guidance for employers enrolled in E-Verify. The new manuals reflect recent changes to the E-Verify website and offer additional guidance and clarification. Employers or their agents who use E-Verify, federal contractors who have the Federal Acquisition Regulation (FAR) E-Verify clause in their contracts, and employers considering using E-Verify should become familiar with the new manuals.

Copies of the new manuals can be found at USCIS.gov.

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Despite a marked decrease in H-1B petitions filed to date, USCIS is making little effort to adjudicate its current caseload of H-1B petitions in a timely fashion. The USCIS’s stated processing times for H-1B’s are more than two months off the actual processing times, which are approaching five months and increasing.

The effect of the processing slow down is that some beneficiaries and employers are being forced to move cases into premium processing or risk losing work authorizations. One affected group is the cap-gap student who has an expired Optional Practical Training (“OPT”) work permit, but is permitted to continue working until October 1st under the cap-gap regulations.

To qualify for cap-gap relief, an H-1B petition for a change of status must be timely filed on behalf of an eligible F-1 student. The student must be in authorized status, meaning, within the OPT period, which includes the 60-day post-departure preparation period, commonly known as the “grace period.” Once a timely filing has been made, the automatic cap-gap extension will begin and will continue through September 30th, unless the H-1B petition is denied, withdrawn, or revoked.

Because USCIS is not doing its job of adjudicating petitions, many cap-gap students are now faced with a not-yet-approved H-1B and October 1st approaching. If this situation applies to you, several steps need to be taken:

1. Notify legal counsel immediately. Counsel may be able to request that the case be expedited without premium processing.
2. The student must go on unpaid leave after September 30th, continuing until the H-1B is approved.

Contact legal counsel immediately if you wish to premium process the application. Premium processing is an extra $1,000 filing fee. Even with this payment, you may not get the case adjudicated for 10 business days.
 

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On September 23, 2010, the United States Citizenship and Immigration Service (USCIS) announced a fee increase for immigration benefits. Unlike most federal agencies, USCIS is primarily a fee-based organization, with 90% of its approximately $2.7 billion budget paid for by user fees. The economic downturn has meant that fewer employers were petitioning for foreign national workers, and that fewer individuals had the money to pay for individual petitions and applications. Consequently, intake at USCIS fell and USCIS brought in less money than expected in 2008 and 2009. To make up for this shortfall, USCIS has enacted a fee increase that will go into effect November 23, 2010.

Overall, fees will go up an average of 10% - this number, however, hides the fact that business- or employment-based categories were disproportionately affected by the fee increase. This is especially true for applicants interested in the EB-5 - Alien Entrepreneur category.

Fortunately, though, the nonimmigrant worker petition used for popular visa types, such as the H-1B, TN, and L categories, only increased 1.5% or from $320 to $325.

Other employment-related visas were not so lucky:

• I-140, Immigrant Petition for Alien Worker – from $475 to $580 (22% increase)

• I-765, Application for Employment Authorization – from $340 to $380 (11.7% increase)

• I-829, Petition by Entrepreneur to Remove Conditions – from $2,850 to $3,750 (31.5% increase)

• I-907, Request for Premium Processing Service – from $1,000 to $1,225 (22.5% increase)

• Application for Regional Center under the Immigrant Investor Pilot Program – from $0 to $6,230

Employers and businesses should be aware of these upcoming increases and, if possible, plan to file cases before the increase on November 23, 2010.
 

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Implementing a portion of the Border Security funding bill (Public Law 111-230) signed by President Barack Obama on August 13, USCIS has announced a new fee, in addition to existing fees, for certain H-1B and L-1 petitions. The new fee is $2,000 for certain H-1B and $2,250 for certain L-1 petitions.

The fee applies to petitioners who employ more than 50 workers in the U.S., with more than 50% of them in H-1B or L-1 status. The fee must be paid when an employer seeks an initial grant of H-1B or L-1 status, and when an existing H-1B or L-1 worker is seeking a change of employer.

USCIS notes that Form I-129, and accompanying instructions, will be modified to comply with the new law. In the interim, employers should address the fee requirement with a notation on their H-1B or L-1 applications.

See the USCIS announcement here:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD
 

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During the I-9 verification process, foreign-born employees often present a variety of Permanent Resident cards, commonly called “Green Cards.” However, for the last few decades, no version of the Permanent Resident card has been the color green.

USCIS announced on May 11 a new version of the Permanent Resident card will be issued. The card will include new, enhanced security features. (See USCIS Press Release, USCIS Q&A.) New, personalized elements of the card will make it more difficult to forge, and each card will contain a Radio Frequency Identification chip. Furthermore, the front of the card contains green-colored features, once again making the “Green Card” green!

The image below, provided by DHS, illustrates the security features on the new Permanent Resident card.

If you have any questions regarding the new Permanent Resident document, document verification, or the I-9 process in general, please let us know.
 

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On April 9, 2010, USCIS announced that in the first week of accepting cap-subject H-1B filings for FY 2011, only 13,500 petitions had been received against the 65,000 regular cap and only 5,600 against the 20,000 master’s cap.

New H-1B visas are generally limited to 65,000 per fiscal year, with an extra 20,000 available to certain individuals with advanced degrees (the master’s cap). The fiscal year begins on October 1, and petitions are accepted beginning April 1.

The first week’s filings represent the fewest H-1B petitions initially filed in several years. In previous years, USCIS had received a substantially greater number of petitions on April 1 than H-1Bs available. Such a situation required lotteries to determine which petitions would be accepted for adjudication. The last lottery was held in 2008, when USCIS received over 160,000 initial H-1B petitions.

No lottery was held last year, where after the first week of filing, USCIS had received over 30,000 regular cap petitions and close to 20,000 master’s cap petitions. USCIS continued to accept applications for new H-1Bs until the limit was reached on December 21, 2009.

It appears that employers now have some flexibility in bringing on new H-1B workers for a start date of October 1, 2010 or later.
 

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The Extraordinary Ability (EB1) immigrant visa category, as the name suggests, is set aside for immigrants who possess extraordinary ability in their fields. Unlike the case of other visa categories, individuals in this category may submit petitions for themselves. It also avoids the backlogs in other visa categories and is commonly used by artists, entertainers and researchers. 

To qualify, an individual must provide evidence of (1) a one-time achievement that is of a major, international significance (the Nobel Prize is the standard example), or (2) at least three out of ten lesser types of accomplishments, as defined by regulations.

Although the regulatory framework has remained unchanged for years, USCIS has varied its interpretation of “extraordinary.” Recently, it has sought to impose requirements beyond those included in the regulations. Rather than accept evidence of three lesser accomplishments to show extraordinary ability, USCIS routinely has required applicants to prove how each accomplishment shows that they are extraordinary. 

For example, the agency required a researcher to show how his publications have changed the way researchers viewed the area of science, even though the regulations only require the applicant to have authored publications. In another instance, the applicant was expected to show that he was selected to conduct peer review because of his extraordinary ability despite the fact the regulations require only that the individual has done peer review. 

Kazarian v. USCIS may help check the USCIS’s excesses, at least in the Ninth Circuit. On March 4, 2010, the Court found "neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations]." Specifically, the Court found improper the agency’s denial of a visa to Poghos Kazarian because of his failure to demonstrate the “research community's reactions to his publications." Ultimately, Kazarian did not qualify for the visa, but the Ninth Circuit’s affirmation that USCIS cannot impose new requirements on applicants arbitrarily is a major win for Extraordinary Ability applicants. (The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.)

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The Fraud Detection Unit of the United States Citizenship and Immigration Services (PDF) (USCIS) has initiated thousands of unannounced site visits to employers with H-1B employees. Although the vast majority of site visits go smoothly, this program can be intimidating and create a chilling effect for employers who wish to pursue the H-1B program appropriately. Employers who do not file accurate H-1B applications may have their petitions revoked, and, in cases of severe abuse, further investigation could lead to civil penalties and criminal prosecution.

Conscientious employers generally do not have to fear a site visit, but should understand them and know how to respond. A site visit will occur at the employer’s location or employee’s worksite. The USCIS investigator generally will ask for the signer of the immigration forms, but may ask for another company official. The investigator will seek to review information from the immigration petition regarding the employer’s business and the employee's job title, duties, work location, and salary.

If you have H-1B employees, prepare for the strong likelihood of a site visit. This means maintaining accurate immigration documentation and becoming knowledgeable aboutthe information they contain. If the H-1B employee is not on site, be sure that there is a person at the location who knows how to respond to an audit.

If you are audited, take careful notes, including the name, title, and contact information of the investigator. If possible, have a witness who also prepares detailed notes of the visit.
If you are unsure how to answer the investigator’s question , simply say that you will follow up after the visit. If any issues arise during the site visit or if you have other concerns, ask to have your immigration lawyer present in person or by telephone.

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