In immigration news, the rescission of DACA and building a wall has dominated the headlines. Thankfully, heightened scrutiny in the adjudication of business visas has been prevalent. We believe this is a result of the “Buy American and Hire American” executive order issued on April 18, 2017. This executive order seeks to create higher wages and employment rates for U.S. workers by rigorously enforcing and administering immigration laws. We also believe that while strict enforcement and adjudication are necessary, officers should take their time, when possible, to differentiate good cases from bad ones.
As a part of the rigorous enforcement, USCIS site visits have increased. USCIS started the Administrative Site Visit and Verification Program in July 2009 in order to verify information in certain visa applications. USCIS directs Fraud Detection and National Security (FDNS) officers to make site visits unannounced to collect information to ensure compliance. Usually, site visits occur most often with smaller companies when eligibility and compliance is in doubt. Recently, there have been reports of increased site visits in conjunction with the processing of L-1 visas. Site visits by FDNS are not new; we are seeing companies that traditionally do not receive site visits receive them. Major Fortune 500 companies that have used these visas for years are now being visited by FDNS.
During these site visits, petitioners (employers) need to be fully prepared to respond to questions on the petition, provide adequate documentation regarding the business, job description, and beneficiary’s qualifications. Petitioners should also be prepared to respond to any requests for additional documents following a site visit. Site visits can occur during the initial petition, renewal and even during the validity of an approved visa. Although we are witnessing an increased number of site visits in L-1 visas, it does not mean that site visits cannot occur in other business visa applications such as H-1, E-2, TN and even family-based immigration cases. Petitioners should be fully prepared when submitting a visa petition. And, a site visit does not mean that a case will be denied. On the contrary, legitimate cases are most often approved.
Request for Evidence (RFE)
Besides an increased frequency of site visits, we are also witnessing an increased frequency of notices for Request for Evidence (RFE). A RFE is generally issued after a visa application has been submitted to USCIS. USCIS will then issue a RFE if it questions the eligibility for a visa or if the evidence submitted is alleged to be insufficient. Many petitions that traditionally would not receive an RFE in the past are currently being scrutinized intensely. For example, an H-1B petition with occupations and employers that have been approved in years past without any question are currently receiving RFEs to prove that the position is a specialty occupation and therefore a H-1B position. Additionally, USCIS is now requesting for evidence of petitioner’s work product which had never been requested before. Petitioners must be prepared to strategically respond to the RFEs.
While enforcement and adjudications mechanisms are nothing new, the frequent use of these is. With the heightened scrutiny of employment-based visas, competent legal representation could be the difference between approval and denial.
At Wilner & O’Reilly, we have years of experience dealing with employment-based immigration visas. We have zealously represented individuals, small businesses and Fortune 500 companies in obtaining employment visas for over a decade. Whether you are facing a site visit, a tedious RFE or simply wish to speak to an experienced immigration lawyer regarding a potential employment-based visa, please feel to contact us. We will be able to assist you.
ABOUT THIS AUTHOR
Richard M. Wilner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.
Chien-Yu (Michael) Wang
Managing Attorney – Sacramento
Chien-Yu (Michael) Wang is the Managing Attorney at Wilner & O’Reilly’s Sacramento office. He handles both family and business based immigration matters along with removal defense. Mr. Wang is admitted to the State Bar of California and the U.S. District Court for the Central and Eastern Districts of California. He is a member of the Los Angeles Country Bar Association, the Southern California Chinese Lawyers Association, the Sacramento County Bar Association and the Asian-Pacific Bar Association of Sacramento.
Mr. Wang graduated from the University of California, Davis with a Bachelor’s Degree in Japanese and East Asian Studies, and also studied at the Waseda University in Tokyo, Japan. He earned his Juris Doctorate degree from Southwestern Law School, graduating at the top of his class.