Based on information that the Murthy Law Firm has received in recent months, it appears that the U.S. Citizenship and Immigration Services (USCIS) is now conducting site visits based on pending H1B petitions. While the site inspection program has been in place since 2009, until recently, it was primarily used to verify information on petitions previously approved. Now, the USCIS appears to be using pre-adjudication site visits to verify information in H1B petitions prior to making a decision on some of these pending cases.
Background on Site Inspections
Both pre- and post-adjudication site inspections are carried out by Fraud Detection and National Security (FDNS) officers and generally are unannounced. They are part of a larger compliance program, which includes research of public records and review of evidence submitted with the petition. More details on the site inspection program are available in the MurthyDotCom NewsBrief, USCIS Site Visits: What to Expect (07.Mar.2018).
Pre-Adjudication Site Visits Conducted After Issuance of RFEs
In the cases the Murthy Law Firm has reviewed, the pre-adjudication site visits have occurred after the USCIS has issued a request for evidence (RFE). In some cases, the site visit is conducted after the RFE has been issued, but before the H1B employer / petitioner has submitted a response. In the majority of the cases, however, the site visit occurs after the petitioner has responded to the RFE.
As with the more traditional site visits that occur after a petition has been approved, during a pre-adjudication site visit, the FDNS officer generally attempts to confirm the information submitted to the USCIS. If any discrepancies are uncovered between the information on record with the USCIS and what is found during the site visit, the FDNS may request additional information, or may simply transmit the findings to the USCIS. It goes without saying that unfavorable findings by the FDNS during a pre-adjudication site visit are likely to result in a denial of the pending petition by the USCIS.
Preparation is Critical
As discussed in the MurthyDotCom NewsBrief, USCIS Ramping Up Enforcement Against H1B Employers (06.Apr.2018), there are certain criteria the USCIS looks for when selecting an employer for a site inspection, but the selection process is otherwise random. Notably, an employer that is H1B-dependent and/or that places workers at third-party work locations is more likely to receive a site inspection. However, the mere fact that an employer is selected for a site inspection after an H1B petition has been approved does not signal that the USCIS believes there is a problem with the case.
It is unclear whether the same holds true for a pre-adjudication site visit. Based on the cases the Murthy Law Firm has seen, such visits have occurred only after an RFE has been issued. At the very least, this signals that the USCIS was not satisfied with the information provided initially by the petitioner. It does not necessarily mean that the USCIS believes the information submitted is fraudulent. But, it does indicate that the USCIS feels the need to verify the information on record prior to approving the petition.
The fact that a site visit has been conducted, either pre- or post-adjudication of an H1B petition, does not automatically mean that some type of action will be taken against the petitioner. But, when such a site visit occurs, a prudent employer should consider consulting with an experienced immigration attorney to review what transpired and determine how best to proceed.