L-1 Petitioners Beware:
USCIS Confirms Plans to Expand FDNS Site Visit Program
History is about to repeat itself. Fraud Detection and National Security (FDNS), a directorate of United States Citizenship and Immigration Services (USCIS), is set to embark on another foray of surprise visits to Corporate America, seeking to determine whether employers petitioning for work-based immigration benefits have kept their word.
First employers of R-1 religious workers were the target of scrutiny, and then sponsors of H-1B workers in specialty occupations heard the knock on the door (see “Immigration Promises Made, Debts Unpaid,” “Immigration Mission Creep and the Flawed H-1B Report on Fraud and Abuse,” and “A Cancer within the Immigration Agency“).
Soon petitioners seeking L-1 intracompany transferees should expect an FDNS site visit. Just as with the R-1s and H-1Bs, perceived abuses have led to these visitations (see U.S. Department of Homeland Security, Office of Inspector General Reports, “Implementation of L-1 Visa Regulations,” and “Review of Vulnerabilities and Potential Abuses of the L-1 program,” and “What the ‘L’ is Going on with USCIS?”).
Here’s the scoop. In an April 24, 2014 stakeholder teleconference, FDNS’s Associate Director, Sarah Kendall, confirmed plans to expand the Administrative Site Visit and Verification Program (ASVVP) to include all L-1 employers.
Under ASVVP, FDNS Officers conduct random, unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions (typically, H-1B petitions). In fiscal year (FY) 2011, FDNS performed more than 17,000 ASVVP site visits, an increase of over 2,000 visits from the previous fiscal year.
The expansion of the site visit program comes in response to an August 2013 report released by the U.S. Department of Homeland Security’s Office of Inspector General (OIG) analyzing USCIS’ L-1 intracompany transferee program and suggesting ways to reduce fraud and standardize adjudications across the program. Initial evidence suggested that USCIS would focus this expanded site visit effort on extensions of individual L-1 new office petitions originally filed with USCIS Service Centers.
During the April 24th teleconference, USCIS confirmed plans to administer a phased roll-out of ASVVP to include site visits to all L-1 employers. Although listeners were left wanting for specific details regarding an anticipated timeline for this phased expansion, USCIS confirmed that the first phase will focus on all L-1A extension petitions filed with USCIS. Furthermore, USCIS confirmed that a pilot program and inspector training are scheduled to be completed by the end of FY 2014.
In line with the existing ASVVP, L-1 site visits will be conducted randomly based on data gathered from Form I-129. Although USCIS indicated that it ultimately plans to include L-1 Blanket applicants in the site visit program, the agency did not specify what data will be utilized for the random selection process, because L-1 Blanket applicants do not file Form I-129 with USCIS.
USCIS indicated several areas that inspectors will focus on during L-1 site visits:
- Does the business exist?
- Does the business appear to be ‘in business?
- Was contact made with the signatory of the petition or the Human Resources representative?
- Did the signatory or Human Resources representative have knowledge of the petition and of the beneficiary?
- Was the beneficiary available to be interviewed?
- Was the beneficiary working for the business?
- Was the beneficiary knowledgeable, forthcoming, and performing same duties as represented in the petition?
- Is the beneficiary being paid the salary as indicated in the Petition?
While USCIS attempted to assure stakeholders that the random site visit program should raise no concerns for honest L-1 employers, listeners may have been left with a different impression. It is evident that USCIS has not reconciled some key differences between the H-1B and L-1 visa categories with respect to specific site visit protocols. For example, in order to file an H-1B petition, an employer must first obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL). The LCA includes an attestation to the DOL that the employer will offer the H-1B nonimmigrant the prevailing wage in the intended geographic area of employment. As such, an employer must accurately indicate the H-1B beneficiary’s salary and worksite location in the petition to ensure compliance with the law.
However, there is no LCA requirement in the L-1 context. Therefore, the DOL does not regulate L-1 salaries within specified geographic areas. In fact, an employer is not required to file an amended L-1 petition unless: (1) there is a change in the L-1 beneficiary’s capacity of employment (i.e., from a specialized knowledge position to a managerial position); (2) there is a material change to the L-1 beneficiary’s job duties affecting L-1 eligibility; or, (3) there is a change in the qualifying relationship between the U.S. petitioner and its foreign entities.
As such, under the current law, an L-1 beneficiary’s worksite, salary, and job duties are subject to change without notice to USCIS. Therefore, FDNS inspectors relying on data contained in the Form I-129 may not possess the most up-to-date information at the time of inspection. An L-1 employee selected for inspection may no longer be present at the worksite indicated in the petition. Furthermore, it is not entirely clear what USCIS hopes to gain by auditing information about the salaries and job duties of L-1 beneficiaries, considering there is no regulatory requirement for continued compliance with the original petition.
According to the agency, the initial site visit will not be determinative. If the beneficiary has moved to a different work site, the site inspector will follow up with the company to confirm the L-1 beneficiary’s new work site, salary, and job duties. The site inspector will take into account the particularities of the L-1 category into consideration before completing a compliance review report and submitting it for supervisor review. However, it remains unclear how follow-up with the employer will occur and how the supervisor review process will work in practice.
While compliance in the H-1B context is straight forward due to the LCA requirement, the standard for compliance in the L-1 context is less clear. To date, USCIS has provided little guidance regarding L-1 compliance. Therefore, sending FDNS officers on site visits to investigate employers’ compliance with the L-1 program seems frivolous at best.
Preparing for the Foreseeable
With or without further guidance from USCIS, L-1 employers should be prepared for FDNS site visits. Employers should take these visits seriously and contact an immigration attorney as soon as an FDNS site visitor appears. Identify procedures in advance to prepare for an unannounced FDNS worksite visit and notify all personnel of these procedures. Always provide complete and accurate information whether requested to do so onsite or subsequently via email. According to USCIS, the ASVVP is a voluntary program. The employer has a right to terminate a site visit at any time. If the officer has not gathered the required information, the officer will follow up with the employer via telephone or email to obtain additional information to complete the compliance review. An attorney can help prepare a timely and thorough response.
Employers should conduct an internal review of the employment of all L-1 employees to ensure that their job duties, worksites and salaries are readily available. Retain complete copies of all I-129 petitions and paperwork. Ensure that foreign national employees and their managers are aware of the content of the I-129 petition and supporting documentation. While there is currently no requirement to file an amended L-1 petition due to minor changes in employment, employers should be prepared to provide complete and accurate information about L-1 beneficiaries to site inspectors either on site or in response to follow-up inquiries by an inspector. For general background on investigation preparedness, see “No Skating on Thin ICE: Using Enforcement Preparedness Policies to Prevent Drowning in Frigid Immigration Waters.”