What do employers need to know?
In an age where entering (and staying in) the U.S. for business purposes is becoming increasingly complicated, Canadian companies who sponsor L-1 and H-1B visa holders in the United States should be aware of the possibility of an administrative site visit — and have a robust plan in place should Fraud Detection and National Security (FDNS) come calling.
L-1s and H-1Bs are U.S. non-immigrant statuses that are granted to foreign citizens that allow them to work in highly skilled capacities. For Canadian companies with offices in the U.S., L-1 status is especially popular as it is a category that allows for the intra-company transfer of executives, managers and specialized knowledge employees from Canada to the U.S.
The U.S. Citizenship and Immigration Services (USCIS) began its Administrative Site Visit and Verification Program (ASVVP) in July 2009, as a way to verify the information in certain non-immigrant visa petitions. The program initially concentrated on H-1B employment. In 2014, USCIS expanded the program to include L-1 employers as well. It also covers religious workers.
As its name suggests, under the program, FDNS visits worksites of employers who sponsor foreign workers. Its purpose? To collect information for a compliance review that verifies whether employers and workers are acting in accordance with immigration laws and regulations, and that visa beneficiaries are authorized to work in their current positions.
What are the chances that my worksite will be inspected?
It is hard to say. Site visits are chosen randomly, and are not necessarily an indication of any wrongdoing by the company or the employee. Because each compliance review focuses on one petition and one beneficiary, employers who have many foreign workers — and therefore many petitions — stand a higher chance of being randomly selected for one or multiple site visits.
A report published in the fall of 2017 by the U.S. Inspector General of its audit of the ASVVP showed that the USCIS visited only 3% of all approved H-1B petitions in the 2014–2016 fiscal years, falling short of its goals. The U.S. government has promised greater scrutiny of H-1B visas, and to expand the number of visits. In light of this promise, as well as the current administration's position on immigration — as evidenced, for example, in the April 2017 Buy American Hire American Executive Order and an overall tightening of border regulations for business travellers — it's reasonable to assume that any business employing L-1 or H-1B could very well receive a visit from FDNS.
The bottom line? U.S. businesses stand a reasonable chance of being reviewed and visited. For Canadian executives and managers responsible for U.S. operations, it is important to proceed according to the assumption that your U.S. Company may be inspected. Companies with L1 and H1-B visa holder employees should have solid policies and procedures in place so that you can respond efficiently and effectively.
Our U.S. immigration law team can help you achieve your cross-border business goals and set you up for continued success. Contact one of our immigration team members today.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
