Responding to Post-Filing Visits: Handling Follow-Up Interviews on H-1B Petitions

1. Responding to Post-Filing Visits:Handling Follow-Up Interviews on H-1B Petitions Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840www.klaskolaw.com

2. William A. Stock, Esq. • Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 15 years. • Bill is featured in the Chambers Global Guide, Best Lawyers in America, and other guides to prominent attorneys. He is a leader in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law. • Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law.

3. Kate Kalmykov, Esq. • Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration.  • Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees. • A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee.

4. What are USCIS site visits? • Visits by USCIS representatives or USCIS contractors to employers who have filed or have approved H-1Bs or other petitions • USCIS has announced that they will conduct 20,000 visits this year on H-1B petitions

5. Why the increase in site visits? • Growth of the FDNS unit at USCIS (resources from $500 Fraud Detection and Prevention Fee) • Concerns from Congress/DHS about possible fraud in the H-1B program • Fewer H-1B filings this fiscal year means more resources to allocate to site visits

6. What are the goals of the site visits? • Detect and deter fraud • Verify information in H-1B petitions • Employer is bona fide • Job opportunity correlates with information in petition • Employee is working in accordance with the information provide in the H-1B petition • Provide information on both legitimate and illegitimate employers for USCIS database

7. What is the FDNS Unit? • Created by USCIS in 2004 "to enhance the integrity of the immigration systems and to identify persons who pose a threat to national security or public safety." • FDNS has a workforce of approximately 650 officers throughout the U.S. and overseas. • FDNS officers are stationed throughout the country and their goals is to tackle immigration benefits fraud. • The FDNS also works with key government agencies to combat terrorism and other national security and public safety threats internationally.

8. Who is conducting these visits? • USCIS FDNS Investigators • USCIS Contractors (private investigators) • If investigator is from ICE / DOL contact company counsel immediately

9. Site Visit Investigators • Ask for identification • Record the name and badge number of the officer • If no badge but a business card, call the 1-800 number on the card to verify that the individual is a contractor conducting a site visit for FDNS

10. What will the investigator ask? • Questions will focus on: • Information regarding employer’s business operations, locations, employees • Company’s financials • Information regarding the number of H-1Bs the company sponsors • Verification of signature on H-1B petition • Information about H-1B employees including job duties, credentials, salary, work location and title

11. What will the investigator ask? (cont’d) • Will normally photograph the facility externally and internally • May ask to tour the employer’s facility, employee’s department or employee’s workspace • Designated company reps should accompany investigator at all times • Employers are not required to provide investigators access to non-public areas of the business

12. What will the investigator ask? (cont’d) • May ask to speak to H-1B employee to verify: • Position and job duties • Requirements of the position • Salary • Work location • Start date • Previous work experience and credentials

13. What documents will the investigator asks to see? • Copy of H-1B petition • Employee’s paystubs and/ or W-2s • Company’s financials or annual reports • May request more extensive documentation (e.g. job descriptions or resumes of other employees in the same position)

14. What do we do if we arevisited by a site visit investigator? • Appoint a trained, designated company representative and back-up • Request the investigator's identification • Lead the investigator to a conference room or other neutral space • Never leave the investigator unaccompanied • Respond to the investigator’s questions • Never guess at answers • Keep a written record • Contact immigration counsel following the visit

15. When Should We Invoke the Right to Counsel? • If the investigator • Asks to see non-public parts of your business operations including non-public financials • Requests extensive documentation/ questions the validity of the documentation presented • Appears adversarial

16. How can your company prepare for site visits? • Inform staff of USCIS visits • Appoint a trained, designated company representative with appropriate back-up • Have them conduct a mock interview to prepare • Have them review H-1B petitions to familiarize themselves • Maintain immigration documents in central location • Have immigration counsel’s contact information handy in case problems arise

17. How can your company prepare for site visits? • Educate all H-1B employees about the possibility that they will have to meet with FDNS investigators • Conduct internal audits of H-1B petitions to ensure information is still accurate i.e. job description, work location, work hours (cont’d)

18. Ongoing H-1B compliance • Conduct periodic follow-ups to ensure that information in H-1B petition remains current; if there are changes appropriate steps should be taken • Implement a tickler system to verify accuracy of information in petition • Regularly train personnel on applicable H-1B regulations and requirements

19. Questions?

20. Speaker Contact Information William A. Stock, Esq. Tele: 215.825.8607 Fax: 215.825.8699 E-mail:wstock@klaskolaw.com Kate Kalmykov, Esq. Tele: 212.796.8856 Fax: 212.297.1799 E-mail: kkalmykov@klaskolaw.com