One of the ways that USCIS ensures employers are H-1B compliant is through site visits. A site visit occurs when an immigration officer visits the worksite of selected H-1B foreign nationals. These site visits are generally chosen at random and are unannounced, meaning that H-1B employers and employees should be prepared for such potential visits and should have an idea of what to expect.
Here are some of the key components to a site visit that you should be aware of:
Employer May Request Identification from Site Inspector
Site inspectors should have proper identification and USCIS credentials and should show these to the employer. Employers should always ask for identification of any persons claiming to be acting on behalf of the government. The site inspector will want to speak with the H-1B petitioner (the individual who sign the H-1B petition). If he or she is not available, the site inspector will seek out an appropriate alternative individual who has authority within the company.
Employers should discuss the possibility of such visits with their human resources team or other appropriate personnel. If an employer wishes to have an attorney present, the inspector should be informed and additional time should be requested, if needed.
Inspector’s Observations on Employer’s Bona Fides and Operations
The site inspector will look at the public aspects of the employer’s premises to determine if the address on the petition appears to be that of the petitioning organization. The signage will be examined for the name of the business. Neighboring businesses or residents may be asked to verify the location and existence of the business. The type of premises will be noted and photographs may be taken.
With permission from an organizational representative, the site inspector will tour the facilities. The purpose is to determine if the business appears to be legitimate and engaged in appropriate business activities.
Employer Questioned on H-1B Employee, Job Duties and Other Details
The site inspector will ask the selected company representative general questions about an H-1B foreign national. These questions will cover information taken from the H-1B petition and will include details of the position, duties and terms of employment.
The site inspector will attempt to verify whether the beneficiary is currently employed by the H-1B sponsor. If the individual is employed with the company, USCIS will ask for proof. If the individual is not employed by the company, USCIS may inquire as to whether the employer has information about the foreign national’s location and current employment. This is one of several reasons it is important for H-1B employers to properly document employment terminations. However, employers are not responsible under the law for tracking their former employees following proper termination.
The site inspector may also request to examine the public access files. Although the U.S. Department of Labor has jurisdiction over ensuring that these files are properly maintained, USCIS does have the right to inspect them as these files are required to be available to members of the public.
Questions to H-1B Employee Often Include H-1B Work and H-1B Filing Fees
The site inspector will also want to speak to the H-1B beneficiary, who will be asked to show his or her identification. The purpose of this discussion is to determine if the H-1B beneficiary will be expected to speak knowledgeably about his or her position and employment. There may be questions regarding the foreign national’s educational background. The site inspector may also inquire into payments made by the employee in connection with the filing of the H-1B petition.
Further Inquiry of Employer May Be Requested
As part of the inspection process, the site inspector will attempt to verify whether the H-1B employee is being paid the required salary and performing the employment duties set forth in the H-1B petition. At the conclusion of the site inspector’s report, a recommendation will be made regarding whether further inquiry is appropriate. The recommendation will have to be explained in the report.
Employers should anticipate and prepare for this type of site inspection before a site inspector arrives. A policy and protocol should be in place for such site inspections. Appropriate employees need to be aware of this inspection program. To the extent that such inspections may cause alarm among employees who are not involved, some discussion or explanation may be advisable beforehand. Please keep in mind that administrative site visits of this type are generally random and are not an indication that a company has engaged in wrongdoing.
If you have questions on site visits or other H-1B related questions, please contact our office to schedule a consultation with one of our attorneys today!