U.S. employers should be aware that the United States Citizenship and Immigration Service (USCIS) is expanding employer workplace visits to include review of post-adjudication L-1 petitions. Until recently, USCIS mostly conducted site visits of post-adjudication H-1B petitions, but recent reports of USCIS site visits in early 2014 indicate more expansive and comprehensive site visits, including the specific review of post adjudication L-1 petitions. The H and L visas are the two principal temporary work visa categories – the H-1B for professionals in specialty occupations and the L-1 for executives, managers and specialized knowledge employees being transferred from a related organization overseas.
USCIS’s Fraud Detection and National Security (FDNS) Directorate conducts site visits of petitioning employer locations and inspects specific information of randomly selected pre- and post-adjudicated petitions to ensure employer compliance and facilitate fraud detection in the H-1B and L-1 visa classifications. By signing and submitting visa petitions to USCIS, employers consent to regulatory agency site visits and verification tools.
Site inspectors typically visit the workplace unannounced, though in some cases they may contact the employer in advance to arrange an appointment. Inspectors may also communicate with the employer by phone or email. Officers typically spend anywhere from 30 to 90 minutes at the worksite, though longer visits are possible.
During site visits, officers usually ask to speak to an employer representative, such as a human resources manager, as well as the foreign beneficiary of the petition and his or her direct supervisor or manager. The inspector verifies the information submitted with the petition, verifies the existence of the petitioning entity, may take digital photographs of the office space, and confirms the beneficiary’s work location, employment workspace and hours.
Officers reviewing H-1B petitions will specifically confirm that the employee’s duties and salary are consistent with the information provided in the petition and as such, are compliant with the H-1B regulatory wage requirement that the employee’s salary meet or exceed the prevailing wage for similar positions. After the inspection, the FDNS officer may request additional information. If all goes well, the employer hears nothing further; if USCIS takes issue, it may notify the employer of its intent to revoke the petition and, on occasion, provide the employer with an opportunity to explain any perceived inconsistencies.
Why now the sudden expanded workplace visits? In August of 2013, the Office of Inspector General (OIG) in the Department of Homeland Security (DHS) released a report on the implementation of L-1 visa regulations in response to Senator Chuck Grassley’s (R-IA) commentary on the L-1 visa program. Senator Grassley has been a longtime critic of the H and L visa programs and has been a vocal proponent of more stringent enforcement. Unlike the H-1B visa (which has an annual cap on the number of visas available and strict wage requirements), the L-1 visa does not have an annual limit of available visas and does not have regulatory wage requirements. These differences have led some to the perception that when the annual quota of H-1B visas is exhausted, some employers misuse the L-1 visa, which has no quota.
Despite the lack of significant fraud findings in the OIG’s report and the lack of evidence that employers have indeed been misusing L-1 visas, apparently in response to the OIG’s recommendations, USCIS has begun conducting post-adjudication, domestic L-1 compliance visits. Employers that have already been subject to the post-adjudication L-1 compliance site visits have reported FDNS inquiries similar to inquiries conducted in the H-1B site visit context. Specifically, FDNS inspectors have requested and reviewed evidence of employee wages relative to the title and experience of the L-1 visa holder.
Although the L-1 visa category (unlike the H-1B visa category) does not explicitly require regulatory wage compliance with DOL wage survey benchmarks, or that the salary paid to the foreign national employee exceed a stated prevailing wage for a similar position, the recent elevated scrutiny of L-1 visas at U.S. consulates abroad and recent FDNS site visit developments here in the U.S. have resulted in similar inquires of both H-1B and L-1 approved cases. FDNS inspector inquiries with respect to L-1 visas have been focused on specific job duties, job title, employment experience and the stated salary relative to the offered position. They have also included requests by inspectors that L-1 employees write out their job responsibilities.
L-1 employers should be prepared for the possibility of unannounced FDNS site inspections. Multiple visits to an employer’s worksite are possible, especially given the recent expansion of the workplace visits. If an employer has multiple H-1B and/or L-1 employees, it may receive more than one visit, with each visit pertaining to a specific nonimmigrant petition. Employers with a foreign national population should take steps to train human resources and administrative staff to properly address worksite visits and respond appropriately to such government inquiries and requests. They should also establish internal procedures to ensure that their H-1B and/or L-1 programs are fully compliant with the law, and most importantly that the representations being made on the applications are in fact true and accurate to what is occurring on the ground.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at email@example.com. Raquel Liberman, an Associate Attorney, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.