If your company employs highly skilled foreign workers, you should be prepared for unannounced worksite visits from U.S. immigration authorities. These visits, conducted by the Fraud Detection and National Security Directorate (FDNS), are aimed at ensuring compliance with U.S. immigration rules and regulations. Notably, during the Trump presidency, an increase in unannounced worksite visits is expected, signaling a heightened focus on immigration enforcement. This article will outline what employers can anticipate during these visits and how to prepare effectively, especially in light of the new H1B regulations effective January 2025.
Understanding the Purpose of Worksite Visits and Evolving Regulations
FDNS site visits serve to verify that employers are adhering to immigration laws and that the employment conditions of foreign workers align with the details provided in their visa petitions. These visits typically occur after the visa application process and the worker’s commencement of employment in the U.S. While participation is “strongly encouraged,” it is technically voluntary. However, refusal to cooperate will result in the FDNS completing their review using available information, potentially leading to adverse consequences.
The H1B regulations that took effect in January 2025 significantly impact FDNS site visits, introducing stricter compliance measures and broader oversight. Key changes include:
- Enhanced Worksite Compliance: Employers must provide detailed documentation of job locations, including remote and hybrid work arrangements. FDNS officers have expanded authority to assess compliance at multiple worksites.
- Increased Scrutiny on Specialty Occupations: Site visits now emphasize verifying job duties and employee qualifications, especially for employees placed at third-party client sites. FDNS may check with end-clients to confirm alignment of minimum requirements.
- Expanded Enforcement Against Fraud and Misrepresentation: FDNS utilizes data analytics to detect inconsistencies and has increased resources to combat fraud, with heightened penalties for misleading information.
- Greater Transparency in Wage Determination: Rigorous wage verification processes require employers to substantiate prevailing wage determinations with clarity, and detailed reviews of compensation structures prevent underpayment.
Visa Types Subject to Worksite Visits
FDNS conducts site visits for the following visa types:
- H-1B nonimmigrant work visa
- L-1 nonimmigrant visa (intra-company transfers)
- EB-5 investor visa
- Special immigrant religious workers
Key Steps to Prepare for a Worksite Visit
- Designate a Company Representative: Ensure an authorized representative, preferably the visa petitioner, is available.
- Inform HR and Legal Counsel: Alert relevant personnel and consider having legal counsel present.
- Confirm Officer’s Identity: Verify the officer’s credentials and USCIS identification.
- Site Inspection and Facility Tour: Expect verification of the company’s address and a potential tour of the premises.
- Employee-Related Questions: Be prepared to discuss the foreign worker’s position, responsibilities, and employment terms.
- Public Access Files (PAF): For H-1B employees, maintain a readily available and complete PAF, including the certified LCA, wage information, and supporting documentation.
- Employee Interview: Prepare the foreign worker to discuss their job duties and qualifications accurately.
The Crucial Role of the Public Access File (PAF)
The PAF is a vital compliance requirement for H1B employers. It serves as proof of adherence to wage requirements and labor conditions. Ensure the PAF is complete and includes:
- The certified Labor Condition Application (LCA).
- A summary of the H1B employee’s wage rate and how it was determined.
- Documentation of the prevailing wage source.
- A statement of notice to workers or bargaining representatives.
Best Practices for H1B Employers
- Audit existing PAFs regularly.
- Maintain accurate and up-to-date employee records.
- Train HR personnel on handling unannounced site visits.
- Ensure H1B employees understand their job roles, wages, and worksite details.
- Keep documentation organized, including LCAs, employment agreements, and organizational charts.
What Happens Next?
FDNS officers compile a “Compliance Review Report” for USCIS review. Significant concerns may lead to referral to ICE for criminal investigation. FDNS does not grant or deny immigration petitions.
The Bottom Line
Worksite visits, especially in light of the 2025 regulations and increased scrutiny, require meticulous preparation. Proactive compliance and accurate documentation are essential. Consulting with an immigration attorney can provide invaluable guidance. Remember, these visits are often random and not necessarily indicative of wrongdoing, but proper preparation is key to a smooth and successful review.