The Fraud Detection and National Security Directorate (FDNS), which is the fraud unit of United States Citizenship and Immigration Services (USCIS), has announced plans to increase further the number of site visits made to L-1 visa employers which are employers that employ overseas nationals on both L-1A managers and Executive visas and L-1B visas for specialized knowledge employees during the current fiscal year.
It's understood that the decision to expand the number of site visits comes in response to a report issued by the US Department of Homeland Security (DHS) of the Inspector General in August 2013, which analyzed the L-1 intra-company transfer program and made suggestions to reduce cases of fraud and standardize decision making when considering L-1 visa petition applications.
FDNS is responsible for site audits, which have seen a sharp rise over the last three to four years. Approximately 30,000 sites will be visited to establish whether information provided as part of L-1 visa petitions is accurate. In 2010, the US government stepped up its anti-fraud operations and the initiative continues to gather pace.
H-1B visas initially investigated
Originally, the FDNS was focused primarily in looking for breaches in regulations for H-1B visas, however, increasingly L-1A and L-1B visa employers have become a target of FDNS audits. The success of the scheme has brought about its expansion and it's estimated that over 80% of DHS fraud investigations are pursued as a result of a site visit.
Used for the transfer of multinational executives and managers and specialized knowledge employees from overseas to offices in the US, the L-1 visa category had traditionally benefitted from a certain degree of freedom from stringent US immigration reporting and compliance rules.
However, the L-1 visa category – both employers with employees with 'specialized knowledge' of an organization's products or operational procedures who come under the L-1B visa and L-1A managerial personnel are being aggressively scrutinised by USCIS.
Specially trained US immigration officers have been tasked with conducting all of the FDNS site visits of US L-1 visa employers. L-1 petitions are selected at random for a site visit with audits taking place at business addresses specified on petitions. Employers are not made aware that they will be subjected to an audit, which often catches them out – a method that the government feels to be an extremely effective way of exposing work-site fraud.
L-1A and L-1B Foreign nationals to be interviewed
In accordance with the L-1 visa compliance review process, foreign nationals named on petitions will be subject to an interview with the FDNS site inspector. The signatory of the relevant L-1 visa petition documentation will also face an interview; the site inspector may also take photographs of the work area.
The site visitor will then establish whether an employer and employee have a knowledge of the contents of a petition and determine if a company is complying with terms outlined in the petition. An inspector could potentially ask to review specific documents, including an employee's most recent paycheck.
Preparing for an L-1A and L-1B site audit
The site visit program is voluntary according to the USCIS, however, in most circumstances it is probably best to agree to it. Unfortunately, USCIS have provided minimal guidance as to what can be expected. L-1 employers should be prepared for an FDNS visit at any time and ensure they have their paperwork in order. FDNS visits should be taken very seriously. It is suggested that you do the following:
- Organisations are advised to put procedures in place in readiness for an FDNS visit, and also make sure that all personnel are aware of those procedures. In particular, receptionists and other administration staff should be briefed fully as they are usually the first point of contact and can complicate matters if unprepared.
- There should be procedures to make sure that the HR department is informed that an USCIS inspector is on site.
- The USCIS inspector should be directed towards a designated conference room, restricting immediate access to the work area.
- Assign a designated spokesperson to greet and liaise with an inspector to prevent confusion and to ensure that an audit is efficiently undertaken.
- It's recommended that employers carry out an internal review of their own to assess the employment of all L-1 visa employees, making sure that their job roles, workstations and salary details are on-hand ready for review.
- Complete copies of all I-129 L petitions and paperwork should be kept, and files should be properly maintained to prevent giving inspectors an excuse to delve deeper for information.
- Employers should make sure overseas employees, along with their managers, are familiar with the contents of the submitted L-1 visa petitions including supporting documentation.
- Employees should also be encouraged to cooperate with inspectors.
At present, there's nothing in place that requires an amended L-1 visa petition to be filed in the event of a minor change to employment. However, employers should be prepared to supply complete and accurate information regarding L-1 employees to FDNS inspectors, either while they're on site or as part of follow-up inquiries (usually made by email).
Site visits are carried out to try to identify cases of L-1 visa fraud, with USCIS trying to verify that a petitioning company is actually employing the L-1 visa holder, and that the duties and salary as stated in the L-1 visa petition are accurate. USCIS also wants to make sure that any employee from overseas is in fact working at the location specified on a petition and will look to identify that the job role and salary provided match the details provided on an L-1 visa petition.
Should an FDSN inspector determine that what they've seen during a site visit is very different to the information provided on a visa petition, they may decide to revoke and terminate a petition that was previously approved.
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