What H-1B Employees Can Expect and Do During a Surprise Government Audit

You are going about your usual duties at work when you get a call that a government agent wants to speak with you about your H-1B visa.  As you descend in the elevator to the lobby, your imagination goes wild.  As you meet the agent, he identifies himself as an FDNS inspector and wants to ask you a few questions about your employment. Why is this happening?

Since 2009, the U.S. Citizenship and Immigration Service (USCIS) has been dropping in  at worksites where H-1B employees are employed.  These surprise workplace visits are part of the Administrative Site Visit and Verification Program (ASVVP) and conducted by the Fraud Detection and National Security (FDNS) directorate of the USCIS. Most of these site visits are randomly selected and unannounced.

Based on the experiences of my clients and current USCIS policy, here are 10 tips  for H-1B employers and employees to prepare for an H-1B site visits.

• Be prepared.  Any H-1B employer, large and small, can be subject to inspection so expect it to happen (although it might not).  Be sure that your human resource department and other key staff know about potential surprise visits and have a response plan.

• Be accurate. The FDNS inspector may ask questions to verify information in your H-1B petition.  Make sure that you and your employer review the H-1B petition and are confident that the information there is entirely accurate.

• Have a copy of the H-1B petition readily available.  The employer should have a file with the H-1B petition, paystubs, W-2 forms, and other relevant documents that can be easily found. If possible, you and the employer representative should review the petition before meeting the inspector.

• Inform your client site of a possible site visit.  If you work at a client’s site or  location that is not controlled by your H-1B employer, e.g. private practice physician working at a hospital as a hospitalist, be sure the client is aware of USCIS surprise visits.  The client should be told to contact you and your employer immediately if a site inspector arrives.

• Notify your immigration attorney if job conditions change. Some changes to your job, such as work location, job duties,  hours worked, etc.,  may require an amended H-1B petition.  The site inspector will determine and report a violation if such job conditions have occurred without filing an amended petition.  Your immigration attorney can help with the necessary paperwork to avoid costly violations.

• Ask the site inspector for his business card.  You or your attorney may need to contact the site inspector after the visit, depending upon the result.  It’s important to get the name, title, and contact information of the agent.

• Contact your immigration attorney immediately.  Call your immigration attorney and see if he or she is available to listen in on the visit, if possible.  At minimum, write a detailed description of the site visit and email it to your attorney immediately after the visit along with the inspector’s contact information.

• Be cooperative but don’t volunteer information. The FDNS inspector will ask you questions about your job, such as salary, work locations, and job duties.  Answer honestly but there’s no need to volunteer information.  Only answer what is asked and provide only the documents requested.  If you are unsure of an answer to a question ,don’t guess! Ask for more time and agree to follow-up with the officer.

• The site visit is usually brief.  Site visits typically take less than one hour. The inspector may ask to meet with you (H-1B employee),  the HR manager or company representative that signed the petition, your supervisor, or others to confirm your employment details.  He or she may take photographs of the facility to include in the compliance review report.  He should not do anything that will disrupt operations.

• No news is good news. There’s no report card if you pass the inspection so be relieved if you don’t hear from the inspector or the USCIS after the site visit.    If your employer does receive a notice of intent to revoke or any follow-up from the USCIS  as a result of the site visit, contact your immigration attorney immediately.

This article is intended to help you understand immigration basics,  is offered only as general information and education, and is not legal advice or legal opinion about your specific circumstances. You should not act or rely upon the information in this article without seeking the advice of an immigration attorney.

For legal advice for your specific situation, you are invited to schedule an immigration strategy session with me.