A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, March 31, 2010

Employer Pointers on Administrative Site Visits


As discussed in our firm’s blogs and articles, the USCIS has been conducting administrative site visits (ASV) of companies which hire foreign workers.  Details of these site visits have been released by the Department of Homeland Security.  About 25,000 inspections will be conducted by Site Inspectors (SI) at the places of employment.  Worksites of H-1B workers will be targeted.  Because the potential penalties for a finding of violations are quite severe - including hefty monetary fines and even criminal liability in the most egregious cases - employers should pay special attention to these ASV and take the necessary precautionary steps.  The following are some important pointers for employers:

1) Prepare and educate your staff: This simple step may perhaps be the most important one.  Uninformed staff could give incorrect information to the SI and could lead you a finding of violations.  Explain to them the purposes of these visits and let them know who to contact for documents and information requested.

2) Audit your personnel files:  Pay special attention to the H-1B public files and the I-9 forms.  May sure all documents are in place.  The work location in the Labor Condition Application and H-1B petition must match the actual work location.  The I-9 forms must be completed correctly and attached with the proper documents.  If there are discrepancies, corrective steps must be taken immediately including making proper corrections and filing amendments.

3) Get information from the inspectors:  Before the formal inspection starts, get a business card from the person in charge.  Understand which agency they represent.  This is important as other agencies are also conducting site investigations including the USCIS’ Fraud Prevention Unit and the State Labor Department’s Hour and Wage Division. Although the nature of their visits may be similar, the information that they need to collect is different.  Employer should at least get the inspector’s name, phone number, and their official title. 

4) Know where the documents are:  Large companies keep their documents in different locations or databases, and not all staff members know how and where to retrieve their personnel files.   Small businesses may not be very organized, and documents are only handled by one or two key persons.  Therefore, procedures should be put in place as to exactly how and where to retrieve the H-1B public files, I-9 forms, payroll records, etc.

5) Know who to contact:  The receptionist or secretary should have the contact information of their HR manager, accountant, and immigration attorney.  It is strongly advised that an attorney be present either in person or at least telephonically to make sure that the legal rights of the employers and employees are protected.  An attorney can also acts as a third party witness and point of contact.

6) Be courteous and accurate with the SI:  Understand that these inspectors are contractors hired by the government who may not fully understand immigration laws.  They are there to collect certain information and documents only.  Therefore, there is no need to argue with them.  At the same time, provide only accurate and truthful information.  If a document is unavailable or you don’t know the answer to a question, say so and ask for more time to respond. 

7) Perform audit of your personnel files:  The best way to prepare for these ASV is to perform an audit of your personnel files before the inspectors arrive, preferably by attorney who is knowledgeable in immigration issues.  An experienced attorney can advise you how to correct or mitigate some of the mistakes and/or violations before the site visits to avoid or reduce any potential liability. 

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