FDNS Investigators Contacting End-Clients to Verify Information

The Murthy Law Firm has recently received reports that officers from the U.S. Citizenship and Immigration Services (USCIS) Fraud Detection and National Security (FDNS) Directorate have been contacting end-client companies to verify information contained in pending H1B petitions filed by IT consulting companies. Typically, the end-client company is asked to verify that the foreign national H1B beneficiary has been working, or will be working, at the end-client location set out in the H1B filing. This is a recent development, but is consistent with the routine activities of FDNS, which include end-client location site visits to verify details of approved H1B petitions.

Increase in FDNS Investigations

In recent years, the USCIS has devoted far greater resources to investigating H1B compliance and, in some cases, prosecuting employers for fraud related to abuse of the H1B program. Although FDNS involvement with pending H1B petitions is a recent development, site visits to H1B employers and end-clients that have already been approved have become relatively routine. A substantial percentage of H1B worksites eventually encounter a site visit from a FDNS investigator. The purpose of these visits is to confirm the legitimacy of the H1B employment, and to confirm that the H1B employee is working at the specified location set forth in the I-129 nonimmigrant petition and the underlying labor condition application (LCA).

Employer-Employee Relationship and Supervision of H1B Employee

The FDNS investigators making the end-client contacts on pending H1B cases have asked specific questions regarding the supervision of sponsored H1B contractors. This seems to indicate that the FDNS is paying particular attention to the employer-employee relationship that has been a key component of H1B petitions filed by IT consulting firms following the issuance of the January 2010 Neufeld memorandum. The NewsBrief "Entrepreneur" H1B Petitions: A New Option for Start-Up Companies? (17.Dec.2012) provides additional information on this memo.

Importance of Bona Fide Documents with H1B Petitions

The recent FDNS involvement in pending H1B petitions is something of which employers and employees must be mindful, both before and after the filing of an H1B petition. Obviously, all documents and information submitted as part of an H1B petition must be authentic and accurate. Submitting questionable, false, or misleading documentation has always been a mistake that can lead to serious immigration and/or criminal consequences. The involvement of FDNS in pending H1B petitions makes it all the more likely that such actions will be discovered.

Establish System to Address FDNS Inquiries

All employers and employees should keep this recent development in mind. The fact that FDNS might contact the end-client regarding a pending H1B petition means that the end-client, and in particular the end-client's human resources (HR) department, must be made aware of the H1B filing, and must be prepared to accurately respond to any questions posed by an FDNS investigator. Depending on the nature of the relationship between the end-client and the H1B employer, the end-client's HR representative may not be fully aware of the H1B placement, or might not know any of the details related to the H1B contractor. This can occur even in instances where there is absolutely nothing improper about the petition, simply because the HR department may have little or no involvement with the H1B contractors. In order to avoid problems, the HR department must be fully aware of the arrangement, and be prepared to respond accurately to questions posed by an FDNS officer.

Conclusion

The FDNS actions in contacting the end client to verify information on pending cases is a yet another facet of the policy and practice of close scrutiny of H1B petitions, particularly those filed in the IT consulting context. It is vital for IT consulting companies to remain up-to-date on the government’s expectations and methods of verification and to respond accordingly. MurthyDotCom will continue help our readers by monitoring developments and other approaches used by FDNS. As always, the attorneys at the Murthy Law Firm are available to discuss H1B matters, including FDNS inquiries and related issues.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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