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US State Department Consular Center to Initiate Audits of Nonimmigrant Visa Petitions, Including Unannounced Telephonic Contact of Employers

August 27, 2010

The Department of State (DOS) Visa Office has confirmed that its Kentucky Consular Center (KCC) has begun verification of information contained in nonimmigrant visa petitions (forms I-129 for H-1B, L-1, etc.) received from the U.S. Citizenship and Immigration Services (USCIS). The KCC’s effort to verify the information contained in the visa petitions will include telephone calls to the employers/petitioners related to factual aspects contained in the petition.

By way of background: In 2007, the DOS instructed consular posts (where the visas are issued to the foreign-national workers coming from overseas) that they must verify the details of approved NIV petitions through the Petition Information Management Service (PIMS). The electronic PIMS record created by the KCC is the primary source of evidence used by consular officers to determine the existence of a nonimmigrant visa (NIV) petition approval. In addition to the information submitted by the employer/petitioner on the petition form (I-129), many of the PIMS reports also contain information from DOS’ Fraud Prevention Unit (FPU). The FPU performs research on petitioners, and as part of a pilot project, the FPU, on a random basis, verifies factual aspects related to the foreign-national employees and their proposed U.S. employment. Part of the PIMS report will consist of a base petitioner record for all first time employer/petitioners. To create this base petitioner record, the KCC verifies petitioner information contained in the petition including, but not limited to, review of the company website, company contact information, and use of Google earth to confirm that an office exists in an appropriate physical location. Once the base petitioner record is complete, the KCC will not normally re-verify the petitioner information for two years. At the same time, the KCC has initiated a pilot program for verifying information related to the foreign workers/beneficiaries and proposed U.S. employment. These checks are completed at random and are primarily completed through telephonic contact with the employers/petitioners. The telephonic contact by KCC will be unannounced and will likely occur shortly after the petition is transferred to the KCC from the U.S. Citizenship and Immigration Services.

Once the review is completed, the findings concerning the foreign-worker/beneficiary review are made available to the consular officers who are instructed to question the beneficiary regarding any discrepancies, and request that the KCC correct any information if a finding was in error. If the discrepancies were not in error, the consular officer will provide additional information to the KCC to update their report to include any additional incriminating evidence discovered during the course of the nonimmigrant visa interview.

The FPU has designated 15 contractors who have been authorized by the DOS to conduct these telephonic beneficiary reviews with petitioners. These contractors are authorized to contact the employer and may request to speak to an authorized official. They will then ask a series of questions verifying certain information contained in the approved nonimmigrant visa petitions.

These include, but are not limited to:

  1. Whether the petitioner, in fact, submitted the petition;
  2. When was the petitioner incorporated;
  3. Where was the physical location of the petitioner;
  4. Number of employees;
  5. Names of shareholders
  6. Location of Attorney of Record;
  7. General information regarding the petitioner’s operations and business plan

Practice Pointers for KCC Telephonic Reviews:

The following practice pointers are based on those offered for the USCIS Office of Fraud Detection and National Security (FDNS) site visits. Proper preparation of employers for FDNS site visits will also ensure that the petitioner is prepared for a KCC telephonic verification call.

  1. Prior to execution and filing of the I-129 and supplement forms, the petitioner should have reviewed the petition in its entirety and confirmed the accuracy of all information material to the employer’s sponsorship eligibility, employer’s public contact information, the beneficiary’s eligibility for the status benefit, the nature of the job offer, and the terms and conditions of employment specified in the petition and any supporting documents.
  2. Although most KCC telephonic contact will occur shortly after the approval of the petition, but prior to the visa issuance, the KCC may contact the employer/petitioner even after visa issuance.
  3. Employers contacted by the KCC should request the name of the KCC contractor and advise them to confirm the credentials of the contractor with the KCC prior to providing any information. Confirmation may be obtained by contacting the KCC at (606) 526-7500. There are multiple governmental agencies that may audit the relevant petition. Therefore, it is critical that the employer determine which agency it is providing information to in the event follow up is needed.
  4. Employers should contact their counsel of the telephonic contact by the KCC contractor and should attempt to be present (in person or by telephone) with the petitioner representatives for future contact with the KCC contractor, if possible.
  5. Employer personnel should not to speak with government agents or contractors without a witness present. Both the witness and the interview subject should be debriefed as soon as possible by employer’s counsel following the interview. If this is not possible, both the witness and the subject should prepare notes of what transpired at the interview, label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to counsel for review and retention.
  6. Employers should retain complete copies of their I-129 petitions and supporting documents in a confidential file maintained by the designated company official. Should the company elect to submit to the telephonic interview by the KCC contractor, the designated official should retrieve this documentation and review it prior to speaking with the KCC contractor.
  7. If the KCC contractor requests information from the employer and the employer cannot provide accurate information without further research, the employer should indicate this to the KCC contractor. The employer should not “guess” about any information provided during the call. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the KCC contractor to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the KCC contractor and there are no other company representatives available to answer the questions during the unannounced telephonic contact.
  8. Employers should remember that any derogatory information obtained during the telephonic contact and subsequent nonimmigrant visa interview could be used regarding a previously approved petition in the post-adjudication process, and/or could be referred to USCIS and ICE for further investigation, which could lead to civil penalties or criminal prosecution.