Fraud Detection and National Security Directorate (FDNS): Unannounced On Site Inspections

U.S. Citizen and Immigration Services (USCIS) created its Fraud Detection and National Security Directorate (FDNS)for the stated purpose of assuring that immigration benefits were not granted to individuals who pose a threat to national security or public safety, or seek to defraud the immigration system.

FDNS Site Visits

FDNS has implemented an on-site audit program that subjects employees in either H-1B (professionals) or L (intracompany transferees) status to random site visits to verify the accuracy of the information provided in the underlying petition authorizing employment in the U.S.   FDNS site visits are unannounced and can take place at the employee’s principal place of business or satellite offices. During these visits FDNS officers seek to confirm information about the company and verify that the employer is complying with the wage requirements and that the material facts remain accurate in relation to the job duties, hours, and location set forth in the petition.  Any material change in the terms and conditions of employment require the filing of an amended petition and failure to report changes timely may be the basis for revocation of the underlying petition approval.

Questions that are normally asked of the employee include:

1. Please describe your:

1. 1. Job title;
   2. Job duties;
   3. Hours of employment;
   4. Salary; and
   5. Work location.

1. Has there been any change to the job title, duties or salary since the date of the filed petition?
2. Are you currently employed at the location set forth in the petition and if in H-1B status do you have a Labor Condition Application covering the location for which you are presently employed?
3. What institution of higher education did you attend? What years did you attend? When was the degree issued?
4. Did you or your employer pay the USCIS filing costs for the I-129 petition?

Employees must assure that all of the information set forth in the non-immigrant visa petition regarding wage, job duties, hours and location of employment remains accurate. Changes to job title, duties, or location of employment must be reviewed by legal counsel to ensure that the employee continues to maintain proper status in the United States.  Therefore, prior to any change in title, job duties, location of employment, reduction in salary or extended leave of absence, it is critical that either the employee, his/her manager and/or Human Resources Representative communicate with legal counsel.

It is always best to communicate with legal counsel. Do not assume that your employee’s status is still valid. If any aspect of the employment changes the employee could later encounter a problem when attempting to process for legal permanent residence or when seeking a visa when traveling abroad.

The USCIS takes the position that an amended petition must be filed whenever there is a “material change” in the terms and conditions of the employment.

During the unannounced site visit, the FDNS officer will normally verify information contained in a specific immigration petition, regardless of the number of petitions filed by the employer. The FDNS officer will normally have a copy of the petition. The FDNS officer will usually request to speak with the employer’s representative who signed the Form I-129. However, because the site visit is unannounced, if this representative is not available, the FDNS officer will then ask to speak with another employer representative, such as a Human Resources Manager.

When speaking with the employer’s representative, the FDNS officer will ask the employer’s representative for specific information about the company, including, but not limited to, the employer’s business, locations, and number of employees. The FDNS officer may ask to review a copy of the company’s tax returns, quarterly wage reports, and/or other company documentation to evidence that it is a bona fide business. The FDNS officer may also request confirmation that the signature on the Form I-129 petition is genuine. The FDNS officer usually will request detailed information about the employee’s title, job duties, work location, and salary. The FDNS officer may also request to review a copy of the most recent paystub and Form W-2.

After speaking with the employer’s representative, the FDNS officer will then normally ask to interview the employee. During this interview, the FDNS officer may ask about job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background and previous employment experience.

After speaking with the employee, the FDNS officer may then ask to speak with a colleague of the employee and/or the employee’s manager. When speaking with these individuals, the FDNS officer will again request information about the employee’s position title, the position duties, and the requirements for the position.

After conducting the interviews and receiving any requested documentation, the FDNS officer will complete the site visit. Site visits usually last for less than an hour.

Practice Pointers for FDNS site visits:

1. Contact legal counsel immediately if an FDNS officer visits, before any interviews begin. Legal counsel can attend in person or by phone. There is no negative inference in having legal counsel participate in FDNS on site audits.

2. The employee, his/her manager and/or Human Resources Representative should review the underlying petition prior to meeting with FDNS. If your company does not have the underlying documentation in an accessible location maintained by the designated company official the employer should contact legal counsel. Most legal counsel who prepared and filed the petition will maintain a full copy of all material and can provide it immediately. Since FDNS Officers are looking for discrepancies, it is important to review the petition and supporting documents relating to the nature of the job opportunity, the terms and conditions of employment, and the educational documentation submitted and prior work history prior to meeting with the FDNS Officer to get familiar with the terms of the petition and assure that there have been no material changes to the terms and conditions of employment.

3. The employer should request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may conduct audits including ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. Therefore, it is critical to determine which agency has asked for information in the event follow up is needed.

4. Neither the employee nor any company representative should speak with government agents without an attorney or a witness present.

5. If the employee is working at a client site, s/he should notify the end user about the current FDNS assessment program and the possibility of a site visit. The employer should request that the end user company contact them at the beginning of an FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user’s location.

6. If an FDNS officer requests information and the employee or employer is unable to provide accurate information without further research, you should indicate this to the FDNS officer. Do should not “guess” about any information provided during the site visit. Remember that any derogatory information obtained during the site visit could be used to revoke  a previously approved petition in the post-adjudication process, and/or could be referred to ICE for further investigation, which could lead to civil penalties or criminal prosecution.

One (1) out of three (3) persons who enter the U.S. in H or L status may be subject to these random unannounced visits which are on the rise. It is therefore important that the employer or employee reach out to legal counsel prior to speaking with the FDNS officer so that they can be on the line during any questioning to clarify any issues that arise, provide information and properly represent the interests of the employer and employee.