Detailed below are four recommended courses of actions:
- Determine who will deal with the investigator at each stage of the investigation. For example, initially, a receptionist will need to confirm the identity of the investigator and contact corporate counsel and the person designated by the employer beforehand to manage such investigations. But then it may also be necessary to involve the personnel responsible for managing corporate and immigration documents; still someone else may need to provide information concerning the work conditions of nonimmigrant employees. The person who actually executed the immigration papers at issue likely will need to be involved as well as the nonimmigrant employees whose documentation may be at issue. As a rule, FDNS investigators should not be allowed to roam around the employer’s premises. His or her movements should be managed, but to do this presupposes that an employer has a plan of action and that the persons designated to implement that plan are trained to do so.
- Prepare ahead of time corporate and organizational charts showing the relationship between and among corporate entities and the relative positions of personnel within the organizational hierarchy.
- Try to anticipate common questions and frame responses ahead of time–before the government is knocking at the door. The questions an FDNS investigator is likely to ask can best be broken down into categories: questions about the employer; questions about the immigration petition or petitions that were filed by the employer; questions about the relationship between the petitioner and the alien-beneficiary; questions about the beneficiary; questions about the relationship between the employer and immigration counsel, and then questions specific to a visa category-like H-1B or L.
- Properly maintain public access files concerning H-1B employees and audit the files internally on a regular basis. What a public access file is and what it should contain will be one of the subjects of a future article.
Recommendation: Don’t Get Caught with your Head in the Sand
All employers who have made filings to secure the employment of foreign nationals should work with immigration and corporate counsel, and human resources personnel, to develop protocols to manage immigration documents and to respond efficiently to unannounced, onsite visits by FDNS that are markedly increasing in frequency and will likely become a prominent feature of immigration’s future landscape.