- Ensure all reception, security personnel, and HR employees understand what an FDNS visit is, and adheres to an FDNS visit plan. It is recommended that one individual is designated as the primary contact to respond to an FDNS visit, and one alternative contact. Reception should immediately contact the organization’s designated contact if an FDNS investigator or any other government investigator arrives at a worksite.
- Request identification from the officer/investigator (or a business card) and take down all information in the event a follow-up is necessary (e.g. date, location, agent’s name, badge number, agency, telephone, email, reason for visit, records requested, individual requesting to interview, etc.).
- Determine whether it is an FDNS visit (rather than an Immigration and Customs Enforcement matter, Wage & Hour matter, etc.). It should be noted that FDNS site visits are generally related to H-1B and L-1 petitions, distinguishable from Immigration and Customs Enforcement (“ICE”) visits, which may involve I-9 worksite audits.
- USCIS and FDNS take the position that the submission of an H or L petition by an employer constitutes a knowing waiver of the Fourth Amendment right to privacy and therefore a subpoena is not required to complete a site visit. While this position remains untested, since FDNS investigators appear to be asking questions from a standard script for now, we recommend cooperation with FDNS officers.
- FDNS investigators typically ask to meet with the foreign national and a company representative (e.g. HR or a supervisor or manager). The questions should be limited to the facts presented in the H or L petition, including job title, job duties, salary, qualifications, work location and payment of fees. Ensure that these individuals are familiar with the process and questions they may be asked about the H or L petition. Visits may be related to a pending or an approved H-1B or L-1 petition.
- If you are unsure of an answer to a question or if the questions do not reasonably relate to the H or L petition, ask to respond at a later date so you can verify the answer rather than invent a response. Under no circumstances should one guess or provide inaccurate information.
- It appears that the FDNS investigators are assigned to verify information, and primarily work from a checklist of standard questions with no independent authority or decision-making capability. As mentioned above, they will confirm whether a foreign national is working at the listed location, doing the work described in the H or L petition, earning the salary indicated in the petition and what their educational qualifications are. They may take photos to confirm the employment location, but should not ask to search the workplace. FDNS uses this information to assist USCIS with developing a fraud detection database.
- Employers should insist that at least one individual (preferably the designated contact) accompany the investigator at all time. The officer should not be permitted to wander around the company premises. Employees should not be interviewed alone, and an HR or company representative should be present at all times. Be sure to meet in a conference room and not in an open area. Take detailed notes during any interview and forward the details to us.
- To prepare for an FDNS visit, conduct your own internal audit of H-1B and L-1 petitions to ensure that H and L employees’ job duties, work locations and salary are consistent with the petitions that were filed with USCIS, and that all Public Disclosure Files are up-to-date.
Typical questions from FDNS investigators during site visits
Questions for the Company Representative
(HR Manager, General Counsel)
General questions about the employer
- What is the name of the petitioner?
- How many employees does the employer have in the United States?
- How many employees does employer have worldwide?
- How many employees are full-time and how may are part-time?
- How many employees are employed by this division?
- Is this the corporate headquarters?
- Please provide a list of the employer’s office locations throughout the United States.
- What is the employer’s ownership structure?
- What are the employer’s hours of operation?
- How does the employer recruit for positions?
- Did you conduct layoffs recently? How many employees were laid off? What was the reason for the downsizing?
- Please provide evidence of the employer’s ongoing business operations, e.g. quarterly wage reports.
- What is your annual revenue?
- What is your budget?
Immigration policies and practices
- Does the employer regularly file I-129s and I-140s?
- What is the employer’s green card policy?
- Do foreign nationals pay for their visas?
Verification of petition
- Did the employer file this petition?
- Did [signatory] sign this petition? Did he/she have authority to sign/file the petition? Do you recognize this as his/her signature?
- Have you met the foreign national who is the beneficiary of this petition?
- What position was the foreign national hired into?
- Is he/she currently working in that position?
- What is the foreign national’s current job title?
- What does this job entail?
- What duties does the foreign national perform in a typical day?
- Are the job duties listed on the petition the job duties the foreign national actually performs?
- How many people does the foreign national manage/supervise?
- What was the foreign national’s employment start date?
- Is the job full-time or part-time? How many hours per week?
- Which department is the foreign national assigned to?
- What is the foreign national’s current work address?
- What is the foreign national’s base salary?
- Is the beneficiary on U.S. payroll?
- Do you have evidence of the beneficiary’s salary, such as W-2s?
- Is the beneficiary compensated from other than corporate funds, i.e., is the beneficiary moonlighting? Do you have any knowledge of such activities?
- Does the foreign national pay taxes in the United States?
- Where did the foreign national live before coming to the United States?
- What is the foreign national’s educational background?
Relationship between petitioner and beneficiary
- Does the beneficiary have an ownership interest in the petitioning company?
- Is there a familial relationship between the beneficiary and the petitioner?
- Is there a familial relationship between the beneficiary and the person signing the petition?
H-1B questions
- The prevailing wage listed on the LCA is [amount] per year and the I-129 form lists a starting salary of [amount] per year. What is the salary you are paying the foreign national?
- On the LCA, the position title is [title]. Is that the job you described to us?
- How many employees does employer have on H-1B visas?
- How many H-1B petitions has the employer filed? Since company’s inception? In the past year? In the past five years?
- How many H-1B foreign nationals have occupied the foreign national’s position in the last five years?
L-1 questions
- Which entity did the foreign national work for before transferring to the United States?
- Where is that entity located?
- Is that entity listed on the corporate relationship documentation in the L-1 petition?
- What is the relationship between the U.S. entity and the transferring entity?
- When did the foreign national join the organization?
- How long was the beneficiary employed overseas prior to his/her transfer to the United States?
- What job title did the foreign national hold prior to transferring to the United States?
- Is the beneficiary being transferred to a newly created position or to an existing position in the United States?
- Is the beneficiary replacing a U.S. worker?
- Is the foreign national truly an executive or manager, as opposed to an employee with specialized knowledge?
- What percentage of the employer’s L-1 workers are from [foreign country]? How many foreign nationals are currently in the U.S. on L-1s for the employer?
- Where does the L-1 beneficiary stay while in the United States? (pertaining to intermittent L)
- What is the source of payroll? Is he/she paid overseas?
- How many L visa holders does the employer sponsor?
- How many L extensions does the employer file annually?
Questions regarding consulting firms
- Does the foreign national work at this location?
- Is that a third party location?
Relationship between petitioner and its immigration counsel
- How many petitions does [law firm] file for employer on an annual basis?
- What is [law firm]’s relationship with the employer?
- What work does [law firm] do for you?
- Why do you use [law firm]?
Document requests
- Quarterly wage reports
- Foreign national’s W-2 or paystubs
- Foreign national’s Form I-9
- Organizational chart
Questions for the Foreign National
- What is your job title?
- What does this job entail?
- What are your responsibilities?
- What was your employment start date with the employer?
- Where is your job located?
- Are you doing the job you were hired to do?
- What are the requirements of this position?
- How many positions like yours are there at employer?
- What is your educational level?
- Where did you go to school?
- What was the size of the school?
- Is this your degree?
- The grades on the transcript are out of 100?
- You have a [type] degree?
- You got your degree in what field of study?
- When did you graduate?
- Are you working full time?
- When did you start?
- Has employer required you to pay any fees associated with the H-1B petition?
- How did you come to apply to employer for a job?
- Did you quit your previous job? Why?
- Did you actually work for your prior company?
- What did you do between school and work?
- Did your previous employer file an I-129?
- Did you post your resume on Monster?
- Is this company considered attractive as an employer?
- What is your current address?
- Do you have family here?
- Does your spouse work?
- When did you get married?
- What is your spouse’s current status?
- Please provide tax filings for the past year and your passport.
Questions for the Foreign National’s Manager
- Are all [position title]s working in your group?
- What does your unit do?
- How many people in your unit do that? In terms of staffing, is that a practical number?
