The new onsite worksite audit
US Citizenship & Immigration Services (USCIS) has substantially increased its anti-fraud auditing staff and is now engaged in surprise visits to the worksites of U.S. companies that sponsor foreign workers for H-1B and L-1 visas. USCIS agents arrive armed with a uniform checklist of questions that they ask all employers — from the smallest to the largest. The objective of the audit is to confirm the identities of petitioner and beneficiary and to ensure that foreign nationals are working in compliance with the terms and conditions of their visa category. The agents' tactics, however, often exceed what is necessary and reasonable to obtain this information.
Scope of authority and initial company response
USCIS agents who have entered the worksites of our clients so far have come without statutory or regulatory authority to enter, and have not possessed search warrants or subpoenas. They request the employer's consent to interview petitioner and beneficiary, to review documents in support of the application, and to enter the employer's premises to confirm visually that the beneficiary is employed according to the terms and conditions of the visa category.
A best practice is for employers to designate certain leaders in their Immigration Compliance arena — whether that be with the General Counsel's office or Human Resources — to guide individual site HR managers as they "host" these inspectors. USCIS inspectors have been instructed to report back that they verified that the inspected company is in compliance. Many of the inspectors are contract workers which USCIS has retained to implement the audits and thus lack expertise about how companies maintain records or may demonstrate employment terms. Cooperation and courtesy is always well advised. But because USCIS requires the employer's consent in order to execute a surprise worksite audit, an employer can rightfully request that it have a reasonable period of time to produce documents and company supervisory personnel to provide the necessary information. Employers are not obligated to submit to disruptive or unreasonable requests for access to company employees or company property. Counsel should be consulted regarding how these principles should be applied in each individual fact situation.
Preparing for the on-site audit
Employers should prepare for these audits by identifying in advance what records they are willing to share with the government to confirm terms and conditions of employment, as well as who will provide these records. Rather than subjecting individual employees to unannounced meetings that are unexplained, HR should be prepared to address the company's overall visa compliance approach as well as how the company maintains proof of employment terms. Counsel should be consulted If an inspector insists on a meeting with a particular visa holder or presses to enter company property.
Avoiding problems by reinforcing immigration compliance
On a broader scale, employers need to review and reinforce their compliance programs. Visa petitions should be up to date. If a material change (such as a change in wages or change in location for an H-1B employee) has occurred in the job of a sponsored employee, amendments to the visa petition should be lodged. For H-1B workers, compliance with the Labor Condition Application (LCA) attestations regarding payment of a competitive wage, notification to the work force (or in the case of a unionized employer, to the collective bargaining representative), maintenance of working conditions, and lack of labor disputes is essential. For L-1 workers, the nature of the job function — e.g., executive, managerial or specialized knowledge positions, should continue to be clear and align with the approved visa petition. Public access (LCA) files and I-9 files should also be reviewed.
Baker & McKenzie is providing guidelines and training to organizations as they prepare for such on-site audits, as well as counsel to companies that are the subjects of a surprise worksite visit. We will continue to report on developments in the audit arena.
This article is one of several that appear in
U.S. Homeland Security Newsletter, August 2009.