What to do before, during and after a site visit
We're now in an age where U.S. businesses stand a reasonable chance of being reviewed and visited by USCIS's Administrative Site Visit and Verification Program. For Canadian executives and managers responsible for U.S. operations, it is important that you have solid policies and procedures in place so that you can be prepared and respond efficiently and effectively.
Before a site visit: Be prepared and be proactive
Site visits are typically unannounced, which puts the onus on employers to be prepared for one at any time. When a site visit occurs:
- Contact your lawyer to assist you or provide guidance in responding to any written requests.
- Discuss the possibility of a site visit with sponsored workers as well as human resources or other appropriate personnel in the U.S., so that they know what to expect and how to respond.
- Designate a lead employee as well as a backup for the site visit. Ensure that front desk personnel know who this person is.
- Gather and be prepared to present any information originally submitted with the immigration petitions as well as information about the company. The more organized you are, the better; it's preferable not to keep an inspector waiting while you try to source information and make photocopies.
- Ensure that front desk personnel and HR staff have contact information for immigration counsel in the event of a surprise visit.
During a site visit: Provide information, document and co-operate
What happens during a site visit?
Typically, the inspector will interview the employee, his or her direct supervisor or manager, the person who signed the immigration petition and an employer representative. If the person who signed the petition is not available, the officer may seek an alternative person with authority in the company.
In some cases, inspections may be part of a Benefits Fraud and Compliance Assessment (BFCA). To those ends, the inspector may want to confirm:
- whether the employee made any payments in connection with filing the petition
- that the employee is currently employed by the sponsor; the employee's job title, duties and salary, and that he or she is being paid the offered salary;
- the employee's qualifications, educational background, previous employment, residence and family members in the U.S.
- that the employee is working in compliance with the terms of his or her admission to the U.S.
If you or an employee can't answer the inspector's questions or doesn't have the information handy, take note of the request and arrange to follow up with the outstanding information.
Can I have my MLT Aikins representative present?
If you'd like to have your lawyer present, inform the inspector and ask for additional time. Your lawyer may also participate by phone.
Document the visit
The lead person for the company should accompany the officer on the visit, and sit in on any interviews that the officer authorizes. This person should note:
- the officer's name, title and contact information
- the names and titles of people interviewed
- questions asked and responses offered
- company documents provided to the officer (retain copies)
- the areas visited by the officer
- any photographs taken by the officer (request copies of the photographs)
You don't have to participate — but it's a good idea to co-operate
Participating in the site visit is voluntary.
That said, it's generally a good idea to cooperate with officers, and to provide any available documents and information requested. The U.S. government is expressly allowed to conduct broad investigations, take testimony and to access information related to its validity. Employers and employees complying in good faith with immigration law, the terms of their visas, and the terms of their immigration benefits, should have little to fear from participating in a review. While nothing is certain in the world of immigration, refusing to participate will likely cause you more hassle in the long run.
After a site visit
After the inspection, a compliance review report will be completed. The officer may follow up with additional questions by email. The USCIS will then review the report to determine whether the information is accurate and the beneficiary and petitioner meet eligibility requirements.
The lead person for the company should:
- notify their immigration counsel that the inspection occurred and provide a copies of notes taken during the visit
- arrange for additional information to be provided to the inspector
- provide additional information requested in follow-up communication from USCIS
- review the overall effectiveness of the organization's site visit inspection plan: Did things go smoothly? Was the company prepared? Did employees and other personnel have appropriate answers?
Key takeaways for employers
If you employ L-1 or H-1B workers, your company stands a reasonable chance of being chosen for an inspection. Companies should acts as if they will be inspected and should create a robust plan for that eventuality.
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.