Tips for H-1B and L-1 FDNS site visit compliance

Since 2009, the Fraud Detection and National Security directorate ("FDNS") of USCIS has conducted site visits at employer worksites to ensure compliance with all terms as stated in the I-129 for approved H-1B and L-1 petitions. FDNS operations are funded with the $500 Fraud Prevention and Detection Fee that accompanies initial H-1B and L-1 petitions by employers. If FDNS conducts a site visit and the officer's Compliance Review Report contains indicators of fraud, USCIS will then assess whether further investigation is warranted and, if necessary, alert Immigration and Customs Enforcement ("ICE").

Compliance with the H-1B and L-1 regulations remains essential for employers who submit petitions on behalf of professional workers in these visa categories, and employers should keep in mind a few important points concerning FDNS site visits. If an officer from FDNS arrives at your worksite, remember that FDNS site visits are voluntary, though employer cooperation is strongly recommended. More importantly, employers and their HR representatives should always contact their immigration attorney ASAP in the event of an FDNS site visit. During these site visits, which are typically unannounced, employers may be requested to provide paystubs and W-2s for H-1B and L-1 employees. These figures will then be matched with the amount stated in the I-129 petition and compared to the beneficiary's 1040 tax return to ensure compliance. Employers who are not able to immediately address all the issues raised by the inspector may request additional time to respond.

To avoid any discrepancies in the event of a site visit, employers should make certain that all information provided in the I-129 petition is 100% accurate and that any significant changes to the conditions of employment are brought to the attention of their immigration counsel who can advise on filing an amended petition.  For more information about FDNS and site visit compliance, visit USCIS's website.  

Lengthy wait times for visa appointments in India

U.S. Consular Posts in India began reporting lengthy wait times for nonimmigrant visa interview appointments in June.  These substantial waiting periods continue and affect all nonimmigrant visa applicants other than B1/B2 visitors, F-1 students, and J-1 exchange visitors and their dependents.  Current wait times for appointments (as listed on the Department of State's website) for H-1B, L-1, O-1, and other affected nonimmigrant visa categories are:

• 82 days in Chennai;
• 118 days in Hyderabad;
• 96 days in Kolkata;
• 67 days in Mumbai; and,
• 90 days in New Delhi.

F-1 student visa appointments at some of the above-listed offices are taking as long as 36 days for scheduling. Accordingly, F-1 students should make visa appointments as early as possible to ensure timely visa processing for arrival to the U.S. for the fall semester.

The Department of State ("DOS") reports that demand for U.S. visas has increased by 80% since 2011 and DOS is currently requesting approval to add consular positions in an effort to decrease visa wait times. Until wait times subside, Indian nationals in the U.S. with expiring or expired visas should keep in mind the lengthy periods for obtaining an appointment and plan accordingly - perhaps even deferring international travel unless absolutely necessary to avoid extended waiting time abroad.  Although expedite requests are available for humanitarian issues and business emergencies, such requests should be made sparingly and with sufficient documentation to demonstrate the exigent circumstances. Additionally, visa applicants should also consider Third Country National (typically, Canada) processing (particularly for H-1B and L-1 visa holders) as a more efficient alternative.  Please note that Indian nationals require a Canadian visitor visa to enter Canada.

Not selected in the H-1B lottery? Other work visas for professionals to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.