As of September 2009, the USCIS “Office of Fraud Detection and National Security” (FDNS) has been making unannounced visits to worksites of H-1B employers. Although the FDNS was created in 2004 to ferret out fraud and protect the country by denying immigration benefits to those who pose a threat to our National Security, the timing of and facts surrounding the H-1B “audit” suggest that a motive other than protecting “national security” may be at work. The audit does not appear to be aimed at any particular group and the scope of the program (currently 20, 000 cases have been slated for review) make the audit look more like a witch hunt than an effort to bolster National Security.
The FDNS appears to be randomly targeting businesses, arriving unannounced and without any type of warrant to interrogate business managers and employees regarding pending and approved H-1B petitions. The FDNS insists that it requires no warrant to conduct such “interviews” and while indicating that an immigration attorney may be present, has not been inclined to reschedule one of its unannounced visits in order that an attorney may be present. During the visit, the FDNS is supposed to verify information contained in a specific immigration petition and the FDNS Officer should have a copy of the petition in question on arrival. The FDNS officer will then ask the employer’s representative for information regarding the employer’s business, its locations, and the number of employees.
The FDNS officer may request to review the employer’s tax returns, quarterly wage reports, business licenses and other documents to verify the legitimacy of the employer’s business. Normally, the FDNS officer will want to interview the H-1B employee in question and attempt to question other employees, to verify the employee’s educational attainment and experience, among other facts. The FDNS officer may also demand a guided tour of the employer’s premises, taking photographs and notes.
While the legality of such unannounced and warrantless visits is questionable, employers and H-1B employees should be prepared for such visits. Once an FDNS Officer arrives, the employer may call its immigration counsel and should so prior to the interviewing of any employees. The employer should always, at a minimum, obtain the name, title and contact information of the FDNS investigator and ask for a business card. An Employer or H-1B employee should not give any interviews to FDNS Officers without a witness present, and any such witnesses should take notes from the interview and label them “Privileged and Confidential/Prepared at the Direction of Counsel” and forward them to their attorney for review.
The FDNS was created five years ago, but only recently has begun this all-out assault on H-1B visa holders. While the stated goal in this operation is “national security,” the timing of this audit and its vast scope amidst the worst economic downturn since the Great Depression suggests, at the very least, that a political motive is at work as well. Whatever the motivation for the audits, H-1B employers and their workers should be cognizant of this development and prepared to handle any unannounced visits well in advance.