USCIS and DOL Increase Scrutiny of Immigration Programs

USCIS Site Inspection Program Expanded to Include L-1 Petitioners

Since 2009, United States Citizenship and Immigration Services ("USCIS") has been conducting random, unannounced site inspections at worksites of employers who sponsor H-1B nonimmigrant workers under its Administrative Site Visit and Verification Program. These site inspections are conducted under the agency’s Fraud Detection and National Security ("FDNS") Division. The purpose of the surprise site inspections is to ensure that employers are complying with the H-1B program and to identify whether H-1B fraud exists.

Under the Program, H-1B employers have been visited by an immigration officer or USCIS contract employee (the "investigator"). The investigator typically asks to speak with the signatory of the H-1B petition and the H-1B beneficiary employee. The purpose of the site visit is to confirm information contained in the H-1B petition filed with USCIS by the employer on behalf of the beneficiary. Questions are asked to confirm the job title, salary, work hours, work location and job duties of the H-1B employee. Employers of every size and across every industry have reported being subject to these unannounced site visits and inspections.

Beginning in the first quarter of FY2014, the Site Visit and Verification Program was expanded to include L-1 employers and L-1 employees. This expansion comes as the direct result of a Report released in August 2013 by the Department of Homeland Security’s Office of Inspector General ("OIG"), entitled "Implementation of L-1 Visa Regulations." The OIG specifically looked at the L-1 intracompany visa program in response to a request from Senator Charles Grassley to examine the potential for fraud or abuse in the L-1 program. One of the recommendations made by OIG was for USCIS to implement a site visit inspection program before a "new office" L-1 visa would be extended. The OIG recommendation specifically applied only to the new office L-1. In response, USCIS agreed with the OIG recommendation and stated it would begin conducting L-1 compliance site visits in the first quarter of FY2014. It does not appear, however, that USCIS will limit the L-1 site inspections to "new office" situations; rather, it is anticipated that any L-1 employer (other than L-1 blanket program employers) should expect a possible site inspection.

Employers should always attempt to cooperate with USCIS in the event of a site inspection. A suggested best practice is to contact immigration counsel before meeting with the investigator. The investigators will often allow immigration counsel to participate by conference call while the interviews are being conducted. Employers should ask the investigator for identification and make note of the investigator’s contact information (name, title, phone number). The employer is advised to take a copy of the L-1 filing and meet with the investigator. If the investigator also wishes to speak with the employee, the employee should be made available. The employer is advised to remain in the room with the employee while being interviewed by the investigator. Similar to the site inspections for H-1B employers, the L-1 employer should anticipate questions regarding the job title, salary, source of the salary, work hours, work location and job duties. The investigator may also ask questions about the employment of the L-1 beneficiary prior to arriving in the U.S. The investigator will often ask for some follow up documents, such as paystubs, W-2 forms, the employee’s business card and/or identification. The site visits normally range from 15 to 90 minutes.

Although we do advise employers and employees to cooperate with the investigator, some requests may be considered burdensome and can be refused. Should the investigator ask to tour the company facility or take photographs, these requests may violate company policy. The employer should inform the investigator of company policy and deny such requests.

Employers normally do not receive any follow up after a site inspection is concluded, unless, of course, there is reason to suspect visa fraud. If fraud is suspected, negative consequences could follow and may include a petition being denied, a request for evidence being issued or the issuance of a notice of intent to revoke the approval of a petition.

DOL Announces Additional Factors that are Likely to Result in PERM Application Audits

Since 2005 when the PERM system went into effect, the Department of Labor ("DOL") has conducted both random and targeted PERM audits. An employer facing a DOL audit will have to produce certain core documentation, including a copy of the ETA9089 Application for Employment Certification signed by the employer, the employee and the attorney. Employers will also be required to produce evidence of the State Job Order placement, the posting of the job opportunity at the worksite in question, the Sunday newspaper advertisements and the additional recruitment evidence for professional-level positions. The random audit is a luck-of-the-draw type audit in which the DOL will randomly choose certain PERM applications for audit. DOL will require the employer to produce evidence of the recruitment as documented in the electronically filed PERM application. The employer also must account for the number of applicants who applied for the position and the business-related reasons they were rejected for the job opportunity. This evidence serves as proof that qualified U.S. workers could not be identified for the job opportunity in question.

In the case of a targeted audit, DOL has previously identified certain factors in a PERM application that most likely will result in an audit, including: foreign language requirements; employers which have laid off workers in the six-month period prior to filing the PERM application; job requirements that seem to be tailored to the background of the sponsored foreign worker; job requirements that DOL considers to exceed the "normal" requirements for the position in question; and experience gained by the sponsored foreign worker with the sponsoring employer.

DOL announced a new plan this week that will result in additional factors which may trigger PERM audits. DOL announced that the following eight new criteria may result in Audits and possible Supervised Recruitment:

1. Primary job requirements are less than a bachelor’s degree (except for dairy workers)
2. Trade Related Occupations
3. Public Schools
4. 50% of cases where a degree is required but no work experience
5. 50% of cases where employer has indicated that they have had a layoff
6. PERM applications resubmitted after a denial within the last 12-month period
7. Resubmitted PERM applications after withdraw of an audit case within the last 12 month period
8. PERM applications not filed electronically

Employers must consider carefully the genuine, actual minimum requirements for the position in question. Employers must also carefully document all recruitment evidence and be prepared, should the PERM application be audited, to provide evidence of the recruitment, as well as the business necessity for any job requirement challenged by DOL.

We will closely monitor these USCIS and DOL initiatives and provide updates as they become available. In the meantime, please contact one of our immigration attorneys if you have questions regarding these latest developments or want to know more about the site inspection or PERM program.