What's more, USCIS has hired contract workers, who complete a USCIS training course, to conduct the site visits. But many of the contractors lack expertise about how companies maintain employment records or demonstrate employment terms, adds Stein.
USCIS spokesperson Santos confirms that compliance with the investigation is voluntary. However, employers taken off guard by an unplanned visit may not be aware of that fact.
The protocol for an H-1B visa audit
Investigators request to interview the petitioner, review documents that support the visa application, and enter the workplace to confirm visually that the visa recipient is employed according to the terms and conditions of the H-1B visa.
Stein advises her clients to designate a leader from the general counsel's office or human resources to guide those who could be involved in a potential USCIS site visit. Although a cooperative and courteous attitude is advisable, company representatives may reasonably request more time to provide documents or other information.
"Employers are not obligated to submit to disruptive or unreasonable requests for access to company employees or company property," Stein says.
Companies who sponsor foreign professionals for visas should always prepare for potential visits or audits in advance by identifying what documents they are willing to share with inspectors and who will provide the records. Proving compliance with the H-1B program is the tricky part.
"The H-1B labor process is complicated," says Allen Erenbaum, a partner in the Los Angeles office of law firm Mayer Brown.
For one, employers must prove that they determined the prevailing wage for the occupation in the metropolitan area and that the H-1B salary exceeds both that market wage and the actual wage it pays to other employees in similar roles. The company must also show that it prepared a memo describing the factors-experience, qualifications, education, job responsibilities-considered in determining the wage, posted a public notice of the H-1B employee's job and salary in two locations for ten days, and maintains a public access file containing all information relevant to the H-1B, which can be reviewed by any member of the public at any time.
"In addition," says Erenbaum, "the employer should maintain additional information which will be helpful in the event of an investigation, including payroll records showing the wage rates for the position, any data used to establish the actual wage for the position, and a copy of documents given to employees describing employee benefits."
Employers also should ensure that visa petitions are kept up to date, says Stern. If wages or work location for an H-1B holder changes, companies must move to amend the original visa petition.
"If an employer gets audited," says Erenbaum, "it's too late to begin to get ready."