As we continue to digest and evaluate the new Trump Administration’s policies on immigration, we are providing this update regarding increased worksite verification plans applicable to public and private sector employers with H-1B employees. For schools, please also see our alert regarding Immigration and Customs Enforcement (ICE) efforts and access to schools. It is critical not to conflate the two types of activities by immigration officials.
In 2009, USCIS started the Administrative Site Visit and Verification Program whereby immigration officers from the Fraud Detection and National Security Directorate (“FDNS”) could make unannounced site visits to verify that employers who had filed H-1B petitions on behalf of foreign national employees were complying with the employment terms and conditions outlined in the petitions. On January 17, 2025, regulatory changes were implemented in the final rule titled: “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers”. This rule, among other things, explicitly states that compliance with these site visits is mandatory. Employers who use the H-1B program to employ professionals will need to be prepared to comply with these site visits as we anticipate there will be an increase in the number of site visits in the coming months and years.
It is important to note that, if you have properly filed H-1B petitions, the actual terms and conditions of employment are consistent with the petition (i.e. the wage being paid is what was represented), and you have maintained public access files, a worksite verification process is nothing to be concerned about.
While the rule makes compliance with the site visit mandatory, it allows for employers and beneficiaries to insist that the visits take place on neutral ground as agreed upon by the employer, beneficiary, and the FDNS officer. In the case of public schools, for example, that would likely be at the district office as opposed to the school building where the foreign national is teaching. Similarly, in other businesses, the meeting could take place in a conference room or human resources office. For remote workers that work from home, this could mean meeting at a coffee shop instead of inside of their personal residence, or at the employer’s physical location if that is local to the remote worker’s home.
To prepare for possible site visits, employers should verify they have their copy of the petition filed on behalf of all H-1B employees as well as the public access file for each H-1B employee. During a site visit, FDNS officers will ask to see that documentation. The officers may take photos of the worksite and/or documents, as well as request to speak with the H-1B employee. They may also interview the appropriate personnel in Human Resources to verify the beneficiary’s work location, wage, and job duties. It should be noted that FDNS officers do not make determinations about the petition or compliance, nor are they a law enforcement agency. They will make a report based on their findings, though non-compliance could result in the initiation of an investigation. Immigration and Customs Enforcement (“ICE”) officers do not routinely participate in H-1B site visits though they may be asked to assist with an FDNS visit, or investigate after an FDNS visit if there is suspected fraud or abuse of the H-1B program. Please see our related article for guidance as to dealing with ICE agents seeking to serve a warrant at a school.
Finally, in addition to FDNS officers requesting to review an H-1B public access file as part of an unannounced site visit, it should be noted that any member of the public including other employees may request to view the public access file for any H-1B employees, and employers are required to comply with those requests. Employers should make sure that in the event a member of the public calls or otherwise requests to view a file, the employee who receives the communication knows who maintains those files and handles those requests so it can be routed correctly. Employers are not required to provide copies of the files to members of the public who are viewing them, but they should allow the documents to be photographed if that request is made. A failure to provide access to the public access file to a requestor could result in fines to the employer and in extreme cases, a temporary ban from using the H-1B program following a Department of Labor investigation.
