Seyfarth Summary: In 2004, U.S. Citizenship and Immigration Services (USCIS) – an agency in the U.S. Department of Homeland Security (DHS) – created its Fraud Detection and National Security (FDNS) Directorate. Since then, FDNS’s immigration officers have frequently appeared, without prior notice, at the business premises of employers that have petitioned USCIS to authorize the employment of noncitizens on U.S. work visas. USCIS and FDNS describe these encounters as mere “site visit” intended to confirm the facts stated in employment-based nonimmigrant visa petitions. As part of its “site visit” program, FDNS typically asks for voluminous documentary records, and demands physical access beyond the employer’s front desk in order to photograph the worksite.
This blog post challenges FDNS site visits as unlawful investigative activities that are conducted in violation of the Homeland Security Act of 2002 (HSA). The HSA contains an express prohibition limiting the legal authority of USCIS solely to the “adjudication” of requests for immigration benefits, such as work and travel permission, lawful permanent residency and naturalization. Investigative activities and intelligence gathering under the HSA, the blog post explains, may only be conducted by two other DHS component agencies – U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.
The blog post therefore offers guidance to employers on practical strategies to consider when FDNS knocks at the door.
Multiple agencies within the Executive Branch are charged with responsibility to investigate and enforce U.S. immigration laws. To immigration lawyers, the acronyms and abbreviations are familiar. There is the WHD (the Wage and Hour Division of the U.S. Department of Labor), the IER (the Immigrant and Employee Rights unit in the Justice Department), the HSI (Homeland Security Investigations unit) of ICE (U.S. Immigration and Customs Enforcement), and the BDS (the Bureau of Diplomatic Security in the State Department), among others. Except in criminal law enforcement matters of urgency and with the approval of a federal judge, all of these enforcement agencies provide the subject of investigation with prior written notice when an investigation is initiated. In other words, not one of them routinely conducts unannounced visits to business establishments or personal residences.
Yet one law enforcement agency within the federal immigration bureaucracy takes employers and noncitizen employees by surprise, conducting so-called “site visits” without prior notice. This outlier is the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS). As this blog post will show, and as confirmed by the legal citations in the FDNS Resource Materials, the outlier is also an outlaw.
The Homeland Security Act and the Creation of FDNS
USCIS – a component agency of the Department of Homeland Security (DHS) – takes its jurisdictional mandate from the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 stat. 2135 (2002) as do ICE and another DHS component, U.S. Customs and Border Protection (CBP).
Presaging the creation of USCIS, ICE and CBP, the predecessor entity, the Immigration and Naturalization Service (INS), sealed its doom by posthumously awarding F-1 student status to two long-deceased September 11, 2001 terrorists so that the two could attend flight school. To no one’s surprise, Congress had had enough of INS; thus, the HSA abolished the legacy agency, and created three distinct immigration agencies (USCIS, ICE and CBP) within the DHS. Whether or not inspired by biblical warning, Congress had long realized that the old INS had been plagued by its conflicting missions – both to grant immigration benefits and to deport unauthorized noncitizens.
As result, in abolishing the INS and creating the new DHS, Congress through the HSA divided immigration functions – by endowing one bureau (comprised of ICE and CBP) with the powers of immigration-related investigations and intelligence gathering (see 6 U.S.C. §§ 251(3) and 251(4)), and conferring on the other bureau (USCIS) solely the authority to the engage in the “adjudication” of petitions and applications seeking immigration benefits (see 6 U.S.C. § 271(b)).
So that this bifurcation of immigration enforcement and benefits adjudication would stick, Congress in the HSA added two significant constraints on DHS: (1) no government filing fees may be transferred between the two bureaus (see 6 U.S. Code § 296(d)), and (2) the Secretary of DHS would henceforth be prohibited from recombining the two bureaus into a single agency or otherwise combining, joining, or consolidating functions or organizational units of the two bureaus with each other (6 U.S.C. § 291(b)).
Regrettably, however, the first Secretary of DHS, Thomas Ridge, soon violated this prohibition. On June 5, 2003, he issued DHS Delegation Number: 0150.1,10 “Delegation to The Bureau of Citizenship and Immigration Services, (Delegation)” in which he delegated to BCIS (now called USCIS) the following power:
Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the [USCIS] and make recommendations for prosecutions, or other appropriate action when deemed advisable. (Delegation §II-I; emphasis and underlining added).
By 2004, USCIS had created FDNS. Since then, unannounced site visits to employer business premises, and less frequently, to the homes of noncitizen beneficiaries of employment-based visa petitions have continued.
Alternative Responses When FDNS Initiates a Site Visit to a Client’s Location
Whenever an immigration lawyer learns that a client has been visited by FDNS, a decision must quickly be made whether or not to cooperate and provide the FDNS officer with any requested information, documentation and physical access to the business premises, typically including a request that the officer be allowed to photograph the work area of the noncitizen beneficiary.
A decision to cooperate, however, cannot truly be considered voluntary, even if the employer has acknowledged the possibility of a site visit when signing the employment-based work visa petition submitted on behalf of the noncitizen beneficiary. This is because a refusal to cooperate will typically prompt the FDNS officer to report the employer’s refusal to USCIS, and then – in the case of site visits conducted after the petition has been approved and the beneficiary has commenced employment – to issue a notice of intention to revoke (NOIR) the approved petition. No employer wants to risk the ire of a USCIS adjudicator and thus commence a process leading to the loss of a current or prospective employee. Thus, an employer may be reluctant to take steps that might ultimately result in a denial of the work visa petition or a duty to terminate employment. Thus, all too often, the employer – whether directly or through its designated immigration counsel – will often cooperate and provide FDNS with the information, documents and physical access sought.
Alternatively, the attorney may counsel the client that FDNS is an illegally constituted component of USCIS because it is engaging in prohibited investigative activities which, under the HSA, are exclusively the province of ICE and CBP. If the client consents, the attorney would present a duly executed Form G-28 (Notice of Entry of Appearance of Attorney), submit it to the FDNS officer, and explain in an accompanying letter that, in the absence of a judicial order, the client formally refuses to cooperate. At this point, it is advisable that the attorney provide a legal brief with citation to authorities explaining why the FDNS request is an unlawful flouting of the HSA. The attorney may also write FDNS a letter explaining why the request is inappropriate and unnecessary because USCIS already has access to the information sought from other sources. A suggested template letter of this type is included in the appendix.
Immigration counsel should be prepared, however, for adverse action by FDNS or USCIS. This may take the form of a denial notice, NOID or NOIR, or possibly, an administrative subpoena. In each of these situations, counsel should once again cite the HSA as legal authority which prohibits USCIS, and its sub-component, FDNS, from engaging in investigations or intelligence gathering – activities which the HSA confers exclusively on CBP and ICE. At this point, USCIS may cave in, and approve the petition or reaffirm its earlier petition approval.
If, however, the agency denies or revokes the petition, the client and the attorney should be prepared to challenge that action under the Administrative Procedure Act in federal district court. Counsel would cite in the client’s complaint 5 U.S. Code § 706(2), and allege that the agency action should be set aside as:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right .
Presuming that the court agrees, FDNS would be ordered to refrain from site visits but perhaps be allowed to resume the activities in which it had been engaged before the advent of unannounced appearances, i.e., FDNS would only operate behind the scenes, merely access publicly available data and provide that work product to USCIS adjudicators. If the client is the prevailing party in the litigation, counsel may wish to advise on whether attorney fees and costs may be recoverable against the government under the Equal Access to Justice Act (EAJA).
Because the argument is presented in good faith as an unresolved question of statutory interpretation, then even if the court decides to permit ongoing FDNS site visits, and no appeal is taken by the employer, counsel should ask the federal judge to restore the status quo ante, reinstate the work visa status and employment authorization of any terminated noncitizen beneficiary, and allow the employer a reasonable period of time within which to respond to the original site visit request.
Win or lose, the client and counsel will nonetheless have contributed meaningfully to the elucidation of the law and a judicial declaration concerning the suspect legality of FDNS’s unannounced site visits.
 Copyright © 2022, Seyfarth Shaw LLP and Angelo A. Paparelli.
 See, “The Immigration and Naturalization Service’s Contacts With Two September 11 Terrorists: A Review of the INS’s Admissions of Mohamed Atta and Marwan Alshehhi, its Processing of their Change of Status Applications, and its Efforts to Track Foreign Students in the United States,” Department of Justice, Office of the Inspector General Report, Ch. 4 (May 20, 2002)(accessible here: https://oig.justice.gov/sites/default/files/archive/special/0205/chapter4.htm; last visited on April 25, 2022).
 In Matthew 6:24, Jesus said, “No one can serve two masters. Either you will hate the one and love the other, or you will be devoted to the one and despise the other.”
 For an extended analysis of the provisions of the HSA discussed in the text, see September 3, 2020 Brief of the Alliance of Business Immigration Lawyers as Amicus Curiae in Support of Plaintiffs’ Motion for Preliminary Injunction, ILRC v. Wolf, Case No. 4:20-cv-05883-JSW in the FDNS Resource Materials, and Angelo A. Paparelli, “USCIS’s Fraud Detection and National Security Directorate: Less Legitimate Than Inspector Clouseau, But Without the Savoir Faire,” by Angelo A. Paparelli, AILA Law Journal, Vol. 1, No. 1, p. 57 et seq. (April 2019). The government’s opposing brief in ILRC v. Wolf is also accessible through the FDNS Resource Materials.
 Part 7 (“Declaration . . . Petitioner”) of Form I-129 (Petition for a Nonimmigrant Worker) states in relevant part: “I . . . recognize that any supporting evidence submitted in support of this petition may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.”) (Emphasis added.) By its terms, this text is not a consent to a site visit, but rather an acknowledgment that a site visit might occur. Hence, it should not be read as a waiver of the legal argument that FDNS acts in violation of the HSA provisions cited in the text.
 In rare circumstances, the FDNS site visit will occur before the work visa petition is adjudicated. In that case, a refusal to cooperate would likely lead to a USCIS denial of the petition or issuance of a notice of intent to deny (NOID.
 Administrative subpoenas issued by USCIS are not enforceable unless the agency persuades a federal district judge to issue a judicial order. See 8 CFR § 287.4(d).
 A recent example of this type of internal FDNS consultative role can be seen in § 102(a)(6) of the “EB‐5 Reform and Integrity Act of 2022,” Section 2, Division BB of Consolidated Appropriations Act, 2022 (accessible at file:///C:/Users/apaparelli/Downloads/BILLS-117hr2471enr%20(1).pdf; last visited on April 25, 2022), which allows for waiver of the interview requirement for removal of the conditions on the status of a conditional lawful permanent resident. This provision states in relevant part:
WAIVER.—The Secretary of Homeland Security, in the Secretary’s discretion, may waive the deadline for an interview under subsection (c)(1)(B) or the requirement for such an interview according to criteria developed by U.S. Citizenship and Immigration Services, in consultation with its Fraud Detection and National Security Directorate and U.S. Immigration and Customs Enforcement, provided that such criteria do not include a reduction of case processing times or the allocation of adjudicatory resources. (Emphasis added.)
It is noteworthy, moreover, that while this new EB-5 legislation elsewhere gives the DHS Secretary the power to order site visits, it does not designate any role for FDNS in the in-person conduct of such site visits.
 See the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504; 28 U.S.C. § 2412. For background see, Administrative Conference of the United States, Information Interchange Bulletin No. 013, “Equal Access to Justice Act Basics,” (Accessi-ble here: https://www.acus.gov/sites/default/files/documents/13%20EAJA%20Basics.pdf; last visit-ed on April 25, 2022).