Michael D. Patrick ()
Many employers believe that once they have received the proper approvals from the various agencies involved in governing our immigration system, they are free to enjoy the services of the foreign national, without further government inquiry. Unfortunately, government review and oversight do not end when the employer’s application or petition is approved. More and more, government agencies are conducting audits and reviews of approved applications to ensure employers are complying with the rules and regulations applicable to the visa category. This article will discuss this new trend.
To onboard the foreign national employee, whether full-time or just part-time, the employer must first make a filing with the appropriate government agency and have the application approved before the foreign national can commence employment, with few exceptions. Many times, the governing agency will be the former Immigration and Naturalization Service (INS), known as the U.S. Citizenship and Immigration Services (USCIS). However, for some visa categories, such as the J-1 visa for interns and trainees, the governing agency is the Department of State. Moreover, the Department of Labor is oftentimes involved as well, in its capacity to protect the U.S. work force and analyze American labor market conditions.
To illustrate the increase in government oversight, we need not look further than the USCIS. The USCIS conducted more than 14,000 worksite visits in 2010 to verify employers’ use of the popular H-1B visa category for baccalaureate level employees. Of the over 14,000 site visits, approximately 14 percent of the employers were subjected to additional scrutiny, review and investigation, although only about 1 percent of investigated cases were referred for fraud-related investigations.
The U.S. government recently announced several new areas in which they will increase oversight and auditing, to scrutinize employers’ use of popular nonimmigrant visa categories. The Department of State recently announced that it will implement on-site inspections for J-1 training programs and internships. The J visa is for educational and cultural exchange programs designated by the Department of State. The J visa exchange visitor program is designed to promote the interchange of persons, knowledge and skills in the fields of education, arts and sciences. Participants include students at all academic levels; trainees obtaining on-the-job experience and training with firms, institutions and agencies, as well as others.
The recent implementation of on-site inspections for the J-1 training programs and internships likely stems out of the increased criticism of the J-1 program. The J-1 program received national attention when companies such as McDonald’s and Hershey’s were accused of inappropriately using the program. In early 2013, students working at McDonald’s went on strike against the company, citing long work hours, poor housing conditions, and gross underpayment. Earlier, in 2011, 400 students protested work conditions at the Hershey’s chocolate packing plant, claiming poor work conditions, underpayment and lack of cultural exposure, a requirement of the J-1 program.
Amidst the protests, in February 2012, the Inspector General provided Congress with an assessment of the Department of State’s regulation of the J-1 program. The Inspector General recommended that the Department of State “implement an annual program audit requirement for designated sponsors in every J visa program…question[ing] the appropriateness of using J visas in work programs…” and “question[ing] the appropriateness of allowing what are essentially work programs to masquerade as cultural exchange activities.” With respect to J visa holders placed at schools, the Inspector General reported that “teens [were] placed in homes with sex offenders and other felons…some  had insufficient food and lived in squalor.” In response, State Department spokesman Mark Toner acknowledged that “there are major issues that must be addressed.”
As part of the new inspection efforts, agencies that run the J-1 programs under the auspices of the Department of State as well as employers who benefit from J-1 interns and trainees may receive a visit from a Department of State official. The officials will be verifying whether the training programs and internships offered to J-1 foreign nationals comply with agency regulations. The officials will likely also be verifying if the program meets the primary goal of the J-1 visa: for the foreign national to obtain exposure to American culture.
Another visa category where we have seen increased scrutiny and oversight is the L-1 visa category. The L-1 nonimmigrant visa is for skilled employees in either managerial, executive or specialized knowledge positions who are being transferred to the United States for a temporary period. This visa category is principally used to move global personnel working abroad to related U.S. companies. Employers looking to start an office or branch in the United States oftentimes use the L-1 visa category to bring employees to the U.S. to assist with establishing the new office. These types of applications are highly scrutinized by USCIS. Additionally, USCIS has recently announced it will increase its scrutiny over these applications, by expanding its worksite inspection program to include employers with L-1 visa employees in an effort to verify that the L-1 employees are working in compliance with the terms of their admission to the United States.
While USCIS is already conducting many worksite visits for H-1B employers, it appears that the Labor Department will also be increasing its efforts to ensure employers comply with various obligations associated with the H-1B visa category. The H-1B visa category is for professional employees with at least baccalaureate level education seeking to be employed in a specialty occupation. A prerequisite to filing a H-1B application with USCIS is obtaining a certified Labor Condition Application from the Labor Department. In filing such an application with the Labor Department, the employer attests and affirms to comply with various obligations, including paying the H-1B employee the prevailing wage, as set by the department.
The Labor Department has received an increase in its budget to ensure that those obligations are being met by H-1B employers. Specifically, the department’s Wage and Hour Division, which investigates labor condition application compliance will receive an increase of more than $41 million to enhance and expand its compliance investigation efforts. The increase in the budget would allow the division to hire additional investigating officials and conduct more audits of H-1B employers to ensure compliance with the various Labor Condition Application obligations. Moreover, the Department of Homeland Security’s 2015 budget proposal reveals that worksite enforcement is a top priority, allocating considerable funds to “enforcing U.S. immigration laws through the smart and effective use of resources…[and] promoting observance of worksite-related laws.”
Preparing for Visits
As government agencies increase their fraud detection and oversight measures, employers should be well-versed in how to handle visits by officials from the various governing agencies, including the State Department, Labor Department, and USCIS, and in handling other post-adjudication inquiries, such as emails, telephone calls, or written inquiries from various government agencies, such as U.S. Consulates and Embassies abroad.
Worksite visits are frequently unannounced and are oftentimes conducted by a contractor hired by the government who may know little about immigration law and/or the particular visa category being investigated. As such, employers should train human resources staff and administrative staff to be prepared for site visits. Moreover, building security should be alerted to the possibility of such visitors, to ensure the government official or contractor is not denied access.
Employers should ask for identification and a business card from the official, and if concerns arise about the official’s credentials, the employer should take steps to verify the official’s identity before allowing access to the company’s office and files. Employers should also call the company’s immigration attorney. While the government auditor will typically not reschedule the visit to allow the immigration attorney to be present, having him or her by the telephone to assist could prove useful.
If a company has foreign national employees in any of the aforementioned visa categories—H-1B, J-1, L-1—it should expect a worksite visit at its office. The visit will likely involve fairly detailed interviews with company staff and the foreign national, and can last anywhere from 15 to 90 minutes with visits usually taking under an hour, but some taking much longer. The auditor will likely seek to interview a company representative, the foreign national, and his or her manager or supervisor. The official may ask about the company’s business, annual revenue, number of employees, as well as who signed and filed the immigration petition, and about the company’s overall use of specific immigration programs. The official may ask the foreign national employee about his or her education, previous employment, residence, family members in the United States, and daily job responsibilities. The official may request to see the company premises, the foreign national’s work area and payroll records and may even request to take photographs of the office.
Employers are advised to accompany the official as he or she tours the premises, as the official should not wander the company premises unaccompanied or have unfettered access to company files. Employers should take detailed notes of the visit, for company records and to be able to debrief the company’s immigration attorney. The immigration attorney can make further inquiries on the company’s behalf to determine the outcome of the site visit.
For J-1 site visits, employers should expect to be asked for training plans, information about culture programs and exposure, health insurance documentation and housing information for the foreign national. Of particular interest to the State Department official visiting the worksite will be whether the company’s program meets the primary goal of the J-1 visa, which is for the foreign national to obtain exposure to American culture. For L-1 site visits, generally, the official will be verifying the existence of the employer, the validity of the information the employer provided in the immigration petition, and whether the foreign national is working in compliance with the terms of his or her admission to the United States. If the L-1 visa category was used to open a new office in the United States, the employer should expect to be asked additional questions about the new office it has established and the company’s long-term business plan, and should expect that the official will be verifying the information included in the L-1 new office petition.
While at times frustrating and potentially intrusive, employers are advised to comply with the reasonable requests of the official. In submitting petitions for immigration benefits on behalf of staff, employers are agreeing to reasonable inquiries from the government. Oftentimes, the forms employers sign in filing an immigration petition require the company to agree to disclose and release information needed by the government, to determine eligibility for the immigration benefit sought, and require the company to agree to worksite visits by the relevant government authorities.
The information gathered is not only used to verify the company’s proper use of the visa category, but also to help the government develop fraud detection databases. Officials gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that indicate fraudulent use of such programs.
In an environment of increased scrutiny, employers should be prepared for worksite visits, should train personnel on what to do in the event of a worksite visit, and should engage competent immigration counsel to help anticipate issues before a visit occurs. While gathering the information and documentation necessary to prepare and file immigration-related petitions is both important and demanding, preparing for worksite visits and ensuring continued compliance is equally as important and demanding, as the government continues to increase scrutiny of employers who hire foreign nationals.
Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy. Marta Izak, an associate at the firm, and Nancy Morowitz, counsel at the firm, assisted in the preparation of this column.