Silicon Valley H-1B and L-1 Employers Should Prepare for Phone Calls from U.S. Department of State

In the past, this blog has advised Silicon Valley employers to prepare for surprise visits by the USCIS Fraud Detection Unit regarding their H-1B petitions. This advice applies to all employers. While most employers who sponsor a foreign national on an H-1B, L-1, or other employment visa go to great lengths to comply with the immigration laws governing these programs, employers going about their daily business simply do not expect a surprise visit from the USCIS, so should they should have a basic plan in place. Now, employers should also be prepared for a phone call from the U.S. Department of State.

Once an employment-based petition (such as an H-1B or an L-1) has been approved, it is forwarded to the U.S. Department of State's Kentucky Consular Center. The Kentucky Consular Center verifies information about the petitioning company, relying on Google Earth, the company's own website and contact information, and probably from other sources as well.

Now, in addition to verifying the petitioning company, the Kentucky Consular Center may also verify information about the foreign national employee and the offer of employment. They will do this by making surprise phone calls to the petitioners, and asking questions about the company, the offer of employment, and the employee. The caller 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 questions could 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.

Preparing for a Phone Call
First of all, unless a business is involved with government contracts or regularly deals with U.S. government agencies, most employers may not know what to make of their receptionist telling them that a representative from the U.S. Department of State is on the line. All employers, of all sizes, that submit nonimmigrant visa petitions should know that it is possible to receive a phone call from the U.S. Department of State.

The Kentucky Consular Center has provided a list of the names of fifteen contractors authorized to make phone calls. Ask for the name of the caller. Before providing any information, call the Kentucky Consular Center at at (606) 526-7500 to verify the credentials of the caller. Simply request their contact information and offer to call back once you have completed your own verification. There are multiple governmental agencies that may audit the petition. Therefore, it is critical to determine which agency you are providing information to in the event follow up is needed.

Second, employers should determine a designated person to speak with a caller. The employee who regularly answers calls should know who this designated person is. If the designated person is unavailable, tell the caller that their call will be returned by the designated person. If an employer has never submitted a nonimmigrant visa petition in the past, they should make this determination prior to submitting the petition.

Third, an employer should notify their attorney of the call, and should try to have the attorney present (in person or by telephone) when a call is returned to the Department of State. When the employer returns the call, there should be a witness present, and both the employer who returns the call and the witness should make notes immediately following the call.

Fourth, an employer should maintain a copy of the submitted petition at the place of employment, and know where it is. If called, the employer should review the contents of the petition prior to returning any phone calls. The employer should also realize that the caller might not have seen the entire petition, and might not have access to the entire submitted petition.

Fifth, if the employer does not know they answer to some questions without further research, they should let the Department of State representative know, and not try to "guess" the answers. The employer should offer to call back with the requested information.

Finally, employers should realize that any derogatory information obtained during the phone call and subsequent nonimmigrant visa interview could be used regarding any 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.

Employers submitting legitimate nonimmigrant visa petitions need to simply be aware that these calls and site visits take place, and need to be reasonably prepared.

Work Visas / by Michelle Gee