There are reports that the Fraud Detection and National Security (FDNS) unit assigned to the USCIS Vermont Regional Service Center is using telephone interviews to investigate representations contained in H-1B and L-1B applications for extension of stay and responses to associated Requests for Information (RFI) served on sponsoring employers -- bypassing the sponsoring employers' attorneys of record. This news is disturbing for the following reasons:

  • When FDNS officers conduct worksite visitations, they are required to present government identification and contact information. Although FDNS site visits are unannounced, employers are able to verify the identity of the FDNS officers and to select the appropriate employer representative before submitting to an interview. Surprise telephone interviews provide no opportunity to verify the identity of the investigator and heighten the risk that someone other than an appropriate, knowledgeable individual will respond to questions and provide incorrect information that will be used against the employer in the petition process.
  • Immigration benefits applications are lengthy and legally complicated. For that reason, many employers engage legal counsel to prepare these filings. Historically, during site visits, FDNS officers have honored employer requests to include counsel in the interview process, whether in person or by phone. Surprise telephone interviews deprive employers of the right to consult with and be represented by their counsel of record during investigative interviews.
  • FDNS officers frequently conduct site visits at the worksites of third party employers where H-1B or L-1B beneficiaries have been assigned to work pursuant to consulting and staffing contracts between the sponsoring employers and their clients. Savy H-1B and L-1B sponsors have begun to educate their clients regarding FDNS site visit procedures and have established knowledgeable liaison representatives to assist clients in the event of a site visit. Surprise telephone calls by FDNS officers to client facilities deprives clients of the opportunity to verify identity and increases the likelihood that incorrect information will be conveyed by an individual other than the designated third party representative for FDNS inquiries.

NOW THAT YOU KNOW - IT'S TIME TO MODIFY YOUR FDNS RISK MANAGEMENT PLAN

The following modifications are recommended:

  1. Develop a written protocol for responding to telephonic inquiries from individuals posing as FDNS agents.
  2. For the reasons stated above, we recommend that our clients state that they will cooperate with any legitimate government investigation, but because it is the client's policy not to respond to telephone inquiries, request that requests for information be placed in writing and directed to counsel or the designated company representative. The name and address of counsel and the designated company representative should be included in the protocol.
  3. Notify clients that FDNS has begun to conduct telephonic investigations and recommend that clients modify their own protocol for responding to FDNS inquiries consistent with the second recommendation.