Immigration Law Updates: USCIS H-1B Site Visits, Visa Lottery and Visa Retrogression
May 15, 2009
Prepare for Surprise USCIS H-1B Site Visits. Funded by antifraud H-1B visa petition filing fees, the government, through its "Administrative Site Visit and Verification Program," is actively pursuing its authority to root out fraud in employment-based visas. Some of our clients have already had the pleasure of a site visit. Expect more. One of the two Service Centers reportedly has transferred (appears randomly) close to 20,000 cases to the USCIS Office of Fraud Detection and National Security (FDNS). We anticipate that the other Service Center may have sent an equal number of cases to FDNS. FDNS also receives other case referrals. As a result, an FDNS officer or contractor may soon be knocking upon your door to verify that all employer representations in the underlying H-1B visa application package are accurate. The officer likely will (a) have a camera in hand to take pictures of the work site and request a tour of your facility; (b) request to review payroll and H-1B records; (c) request to interview the employee and perhaps manager/supervisors; and (c) request a follow up visit. Don't be alarmed, but do set up protocols for immigration compliance and to contact immigration counsel immediately. Following some practice tips below may make for an "uneventful" site visit. FDNS otherwise has the power to initiate further investigation which may result in revocation of the H-1B visa approval.
- Ensure that your H-1B documentation is in perfect order. Any changes to representations made in the initial filing, such as dealing with duties, any salary reductions, etc. should be vetted with immigration counsel to determine whether filing an amended H-1B visa is required. Compliance has stepped up, particularly with regard to interpretations of ramifications of salary reductions. If H-1B files are kept in a different location, the officer may request a follow up.
- Work with immigration counsel to implement an immigration action list for surprise government visits. Designate a second in charge for immigration compliance matters to interface with the officer if the signatory for the employer on the underlying visa petition is not there. Be prepared that the FDNS officer may also ask to review the I-9 and H-1B supporting documentation, and ask information generally about the number of H-1B visa petitions filed by the employer.
- Contact your immigration counsel immediately in the case of a surprise (or planned) visit. Request that your immigration counsel be present by telephone during any interviews on site, as well as have a witness be present at all interviews.
- Remember to ask for the officer's name, title and contact information. It is possible that another government agency is involved such the Department of Labor's Wage and Hour Division.
- For those employers who place H-1B workers at client sites, notify the third party about the possibility of site visits.
- Know that these visits are not limited to approved H-1B visa petitions - they may occur during a pending H-1B petition.
WSM is happy to assist with immigration policies, protocol and communication.
2011 Diversity Visa Lottery Program Registration 10/2/09 to 11/30/09. Please see the State Department registration form for complete instructions and deadlines: http://www.dvlottery.state.gov. The government has already reported that applications are up substantially from last year. Please let your foreign national employees know to apply early. For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Visa Retrogression as the New Fiscal Year Begins. The State Department has released its November visa bulletin, showing slight forward movement in several categories. Employment-Based Second Preference classifications for the "All Others," Mexico and Philippines categories remain current; the China classification advanced one week to April 1, 2005 while India remains unchanged at January 22, 2005. Employment-Based Third Preference categories report as follows: "All Others" remains at June 1, 2002; China advanced 3 months 7 days to June 1, 2002; India advanced 7 days to April 22, 2001; Mexico advanced 1 month to June 1, 2002; and the Philippines remains unchanged at June 1, 2002.
We hope that this information is helpful. Please contact us if you have questions
and stay tuned for our annual November travel advisory for your foreign national employees.
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