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Legal Updates

USCIS Expands Hunt For Fraud: Site Visit Program Now Includes L-1 Visa Petitioners

Earlier this year, U.S. Citizenship and Immigration Services (“USCIS”) announced that it is expanding its Fraud Detection and National Security Division’s (“FDNS”) Site Inspection Program to L-1 visa petitioners, in addition to H-1B petitioners, thereby subjecting those employers to unannounced site visits. This announcement comes on the heels of a report released by the Department of Homeland Security’s Office of Inspector General (“OIG”), which found that the L-1 visa program is vulnerable to potential fraud and abuse.

L-1 Visas

L-1 visas are filed by multinational employers that wish to transfer to U.S. branch offices, parent companies, subsidiaries or affiliates current employees who either (i) are at the management or executive level, or (ii) possess specialized knowledge. L-1 visas are granted for up to seven years for employees at the management or executive level, and for up to five years for employees who possess specialized knowledge.

L-1 visas can also be obtained for employees of a foreign company that wants to set up a new office in the United States. A “new office” L-1 visa is initially limited to one year, but can be extended upon a showing that the company has experienced significant growth.

FDNS Site Inspection Program

Under its Site Inspection Program, FDNS has been conducting random, unannounced site visits to employers that have filed H-1B petitions on behalf of foreign employees. The purpose of the program is to root out fraudulent visa petitions and ensure that employers are complying with immigration laws and regulations.

According to FDNS, its expansion of the Site Inspection Program to include L-1 visa petitioners is aimed at eliminating potential fraud in that visa program. In this regard, the OIG report found that “new office” L-1 petitions are particularly susceptible to abuse.

While the OIG report specifically emphasized the fraud risks associated with “new office” L-1 petitions, it is not yet clear whether the expansion of the Site Inspection Program will be limited to employers filing “new office” petitions and extension requests or, rather, will encompass all employers that submit L-1 visas. However, FDNS has stated that employers of individuals who enter the United States under “blanket” L-1 petitions (which are available to certain employers with over $25 million in combined U.S. sales) will not be subject to site visits.

Recommendations For Employers

In light of this announcement, employers that file L-1 and/or H-1B petitions should be sure to do the following:

      • Prepare for a potential FDNS site visit.
      • For example, FDNS officers may ask about specific employment details included in visa petitions.  Therefore, key personnel need to be familiar with this information.
      • Ensure that the relevant employees understand what to do – and what not to do – in the event of an FDNS site visit.
      • Establish a relationship with experienced immigration counsel, and have a coordinated plan in place, before receiving a surprise FDNS site visit.
      • Consult with experienced immigration counsel before making any changes to a visa beneficiary’s terms of employment.

It is important to prepare in advance for a potential surprise audit, because the stakes are high. If an FDNS officer finds that a beneficiary’s employment terms are not in accord with the provisions of his or her visa, USCIS could potentially revoke the visa or, in the event that it suspects fraud, refer the case to Immigration and Customs Enforcement (“ICE”) for a criminal investigation.

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Please feel free to contact us if you have any questions regarding the FDNS Site Inspection Program or any other issue related to employment visas. The Firm regularly assists employers in these matters and would be happy to help.