Is your company prepared for a USCIS Administrative Site Visit?
Employer's of foreign worker beneficiaries of Form I-129 petitions need to be prepared for Administrative Site Visits. Here's how to be ready.
What is an Administrative Site Visit?In 2009, USCIS instituted the Administrative Site Visit and Verification Program for employers of certain foreign worker beneficiaries. Employers with foreign workers under the H-1B, L-1, and certain religious workers are subject to the site visits. The visits are conducted by USCIS staff or contractors that are part of the Fraud Detection and National Security (FDNS) team and are used to assess and identify non-compliance with the employer*s and employee*s obligations under these respective work visa programs.
How will I know when a visit will happen?The FDNS team will usually begin the process by contacting the employer*s representative to arrange a time and date for the visit. Participation in the site visit is voluntary, but refusal can (and likely would) be interpreted as as basis for deeper inquiry. Employers are selected at random, though certain industries, e.g., tech staffing companies, may be of greater interest to the agency. All employers who have filed a Form I-129 petition, however, should be prepared.
What is the FDNS Team looking for?The FDNS team will have access to government records (e.g., the LCA and I-129 petition, CBP records), publicly available information (e.g., employer*s website, news articles, social media, LinkedIn), and the foreign worker*s previous immigration records. During the visit itself, the FDNS team member will ask to interview the petition signatory, the foreign worker*s supervisor, and the foreign worker and will gather information and documentation designed to assess compliance with the regulations for the work visa program. This can include inspecting the employer*s and employee*s payroll records, HRIS systems, actual work location, tools and equipment, etc.
How can an employer be ready?To be prepared for an administrative site visit, employers can conduct a mock audit. In most cases, once a year or anytime a personnel action, e.g., a promotion, reassignment, etc., is proposed should suffice. During the mock audit, the employer should start by reviewing the I-129 petition as it was submitted and then compare that information to its internal records to determine whether they are consistent with what has been supplied to USCIS. For example,:
Does the foreign worker*s job title on her badge or in the HRIS match that on the I-129 petition?
Does the foreign worker*s LinkedIn profile reflect the job title and duties he is responsible for?
Does the foreign worker*s supervisor know that she has work location restrictions under the work visa program?
Are the employee*s annualized wages on track to meet the stated annual salary?
What if we identify inconsistencies in a mock audit?If inconsistencies are identified, it may mean that an amended petition is required and counsel should be involved to assess the changes. Not all changes will require an amendment, but being able to articular a defensible basis will help to convince the FDNS team member that the employer remains in compliance with its obligations.