As reported by NetworkWorld, the United States Citizenship and Immigration Services (USCIS) has expanded its Administrative Site Visit and Verification Program to address fraud and abuses of H-1B and L-1 Visa programs by conducting unannounced work site inspections of companies that sponsor H-1B and L-1 Visa holders. Its Office of Fraud Detection and National Security estimates that 21% of H-1B visa petitions violate program rules. The shift comes as the Visa Reform Act - proposed federal legislation that will increase restrictions on and oversight of the issuance of non-immigrant professional visas – remains in congressional committee and employers examine visa alternatives should the legislation pass.
During “surprise visits,” USCIS assessors attempt to confirm the identities of a petitioning employer and visa recipient to verify that both have complied with the visa’s terms and conditions. Unlike the U.S. Department of Labor which has the statutory authority to investigate employer compliance with visa obligations, USCIS has no regulatory or statutory authority to enter workplaces of H-1B or L-1 Visa holders. USCIS officials have confirmed that complying with the investigation is voluntary. Previously only religious organizations were subject to mandatory inspections and reviews, however presently any non-immigrant petition might be subject to a workplace audit after approval and prior to any potential adjudication.
Investigators will request to interview the petitioner, review documents that support the visa application, and enter the workplace to visually confirm the recipient’s employment conforms to H-1B terms and conditions. Employers are not obligated to submit to disruptive or unreasonable requests for access to company employees or company property, but it is advisable that companies sponsoring foreign professionals prepare for potential visits by doing the following:
- Prepare Audits in Advance
- Identify who will provide records and what documents the company is willing to share with inspectors.
- Have an H-1B Package which Includes:
- Documentation showing that the recipient is receiving the prevailing wage for the occupation in the metropolitan area.
- Documentation demonstrating how the employer determined the prevailing wage and that the recipient’s salary exceeds both that market wage and the actual wage it pays to other employees in similar roles.
- A memo describing the factors (experience, qualifications, education, job responsibilities) considered to determine the wage.
- Demonstrate that a posting for the recipient’s position, including salary and requirements, was publicly listed in two locations for 10 days.
- Show that the company maintains a public access file that can be viewed by members of the public at any time with all relevant information to the visa.
- Maintain Additional Information
- Payroll records, data used to establish the position’s wage, copies of documents provided concerning employee benefits
- Ensure Visa Petitions are Up-to-Date
- If a visa employee’s wages or work location changes, an amended visa petition must be filed.
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