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.