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Immigration

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Government Worksite Visits: What to Expect and How to Prepare

November 2009

The U.S. Citizenship and Immigration Services (USCIS) recently started to conduct worksite visits of U.S. companies and other entities that employ foreign workers through the H‑1B and L‑1 programs. The USCIS’s Division of Fraud Detection and National Security (FDNS) has engaged outside contractors to undertake these investigations to verify information in the employer petition submitted to the government. This initiative is funded through the $500 fraud fee that petitioning employers pay with the initial petition on behalf of an H-1B or L-1 worker.

In addition, the U.S. Immigration and Customs Enforcement (ICE) recently announced that it is launching an initiative to audit the I-9 records of businesses across the United States. ICE is conducting this campaign of increased enforcement to ensure that the hiring records of U.S. businesses are in compliance with the laws and regulations that pertain to employment eligibility.

These inspections by USCIS and ICE investigators typically come in the unannounced appearance of an FDNS investigator at a place of business, or in the receipt of a Notice of Inspection (NOI) from ICE informing the employer of the agency’s intention to conduct an I-9 audit.

We have prepared this Q&A and attached checklists as guidance in the event an FDNS investigator visits your business’s premises, or you receive a Notice of Inspection in regard to your I-9 records.

What do you recommend as the first step in preparing for an FDNS or ICE investigator?


We recommend that you designate in advance an individual as the primary person to respond to an inquiry, and select an alternate contact to stand in when the primary contact is absent. It is also a good idea to alert your receptionist and corporate counsel of the possibility of an unannounced worksite visit. Everyone who might be involved in a worksite visit should be educated as to what to expect and how to behave should one occur.

If an investigator contacts our company, what should I do first?


Ask the investigator for identification and record the individual’s name, title, agency, and contact information. You may also ask for his or her business card. Request information on the nature of the inquiry. Most of the time, investigators conducting surprise visits are from the FDNS and will not have a subpoena or search warrant, but instead will wish simply to talk to someone of authority at the company, as well as the H or L worker. We recommend that you first speak with an attorney at our firm or your corporate counsel before answering any of the investigator’s questions. In addition, we strongly recommend confirming in advance that the H-1B/L-1 employees are performing the functions described in their petitions and that the employer is following all provisions of any applicable LCA.

May I request that the investigator return later and attempt to reschedule?


If the investigator is from ICE:


An I-9 audit should be preceded by a written “Notice of Inspection” giving at least three days’ notice. If the scheduled time is inconvenient, you should contact ICE promptly to reschedule within a reasonable timeframe. You should then contact our office immediately so that we can assist you in preparing for and responding to the audit.

If the investigator is from FDNS:


The law does not specifically provide for any period of notice for investigations conducted by FDNS. In our experience, investigators from FDNS expect to conduct their inquiries on that day that they arrive. However, your company should not be unreasonably disrupted by the unannounced visit of an FDNS investigator. If the investigator’s visit has not come at a convenient time for you, or the designated contact is not available, we suggest that you politely request the investigator to return at a different day or time, and offer dates and times to the investigator for when he or she may return.

Please refer to the “Checklist for Visit from Government Investigator” for guidance about what you should ask the investigator.

What will happen during an FDNS investigation?


During an FDNS visit, the investigator typically asks to meet with a company representative as well as with the H-1B or L-1 worker. Frequently, the investigator will be interested in viewing the actual worksite. The representative at your company should accompany the investigator at all times and take detailed notes on the questions asked of the company and employee. You should not allow the investigator to speak alone with any employee, whether that is the H-1B/L-1 worker or any other employee, nor should you permit the investigator to roam the premises unescorted.

Please see “FDNS Worksite Visit Guidelines” below for further detailed guidance.

What questions will the investigator ask?


In general, the investigator will seek information relating to the petitioning employer; the relationship between the petitioner and beneficiary; whether the beneficiary is or will be employed in the capacity described, and at the location(s) specified in the petition; and whether the beneficiary has the requisite experience and/or qualifications.

More specifically, questions from FDNS investigators have focused on the following areas:

  • Details about the employer including ownership structure, financial information, number of employees, office locations in the U.S., number of H and L petitions, and recent layoffs;
  • Employer policies with respect to immigration matters including repayment agreements, H-1B hiring policies and green card policies;
  • Details about the specific petition under investigation including job title, duties, day-to-day functions, salary, work schedule, work location(s), and dates of employment; and
  • Qualifications of the H-1B or L-1 employee including education, work experience, and prior immigration history.

How can I prepare our company in advance for a visit from an investigator from FDNS or ICE?


The best way to prepare for either an unannounced visit by the FDNS to inspect your H/L program compliance, or the receipt of a Notice of Inspection from ICE for your I-9 records, is as follows:

  1. Conduct your own internal review of the employment of all of your H-1B/L-1 workers to be sure that their job duties, work sites and salary are consistent with the petition the company filed with USCIS. In addition, you should review the Public Access File for each H-1B worker to be sure that it contains all of the documents required by the regulations that pertain to the Labor Condition Application (LCA). You should also verify that the company is complying with all representations made in the LCA. Our firm is well versed in the laws and regulations that govern LCAs as well as the documents that should be maintained in the Public Access File. We can assist you in conducting your own internal audit to ensure that your company has complied with these regulations.
  2. Conduct your own audit of the company’s I-9 records to ensure that they have been filled out properly and are up to date. Our firm can offer you detailed guidance as to how I-9s should be prepared and filled out, and we can also assist you in reviewing your I-9 records.
  3. Select a person from Human Resources as well as at least one other individual from the company who should be prepared to meet with any investigator should an unannounced visit occur. Provide those individuals with this memo and the checklists we have included so that they can be additionally prepared during any investigator’s visit.
  4. Speak with your corporate counsel’s office to advise them of the possibility that your company may get a visit from USCIS or a Notice of I-9 Inspection from ICE. Make sure you have the name of a specific attorney from your corporate counsel’s office and know how that attorney can be reached at all times. Our firm will provide you with the name and contact information of one or more of our attorneys who you will be able to reach at any time.

Are any other government agencies investigating H-1B petitions?


In addition to employer worksite visits by USCIS and ICE, the U.S. Department of Labor (DOL) is contacting H-1B employees directly through an email questionnaire requesting details about many aspects of their employment and the employer’s compliance with the terms of the LCA. Click here to review this questionnaire. Note the questions relating to the company.

FDNS Worksite Visit Guidelines


If you choose to answer the investigator’s questions, be sure to follow these guidelines:

  • Meet with the investigator in a conference room rather than in an open area or your office.
  • Take detailed notes about the questions you are asked by the investigator as well as your responses.
  • Do not let the investigator wander through the company’s premises. The investigator must tell you specifically what he or she wants to see on the premises, and you should insist that you accompany the investigator at all times.
  • Take detailed notes about every place the investigator looks and what he or she specifically looks at or asks about.
  • Make sure you are present during every conversation the investigator has with any employee.
  • Take detailed notes about the investigator’s conversation with any employee, including the employee’s responses.
  • Take detailed notes about any records you allow the investigator to review.
  • If the investigator asks to inspect any records, ask the investigator to be very specific about what he or she wants to see. We do not recommend that you simply hand over files which may contain private or confidential information, or information that is not specifically necessary for the investigator’s stated purpose.
  • Do not allow the investigator to remove any documents from the company’s files. If the investigator asks for photocopies of any documents, tell the investigator you will prepare those copies after he or she leaves and that you will forward them to his or her office address.
  • Please contact us, or your corporate counsel, if you have any questions at all.