The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
We previously discussed the importance to the EB-5 community of preparing for USCIS initiating site visits at regional centers, NCEs and JCEs as part of its new compliance initiatives. In preparing, it’s helpful to take lessons from employers in other immigration programs who have contended with site visits over the last several years. As longtime advocates for clients who have been subject to site visits in the H-1B, L-1 and religious worker programs, Klasko has compiled a list of the top five most common – but avoidable – mistakes employers make when encountering the Fraud Detection and National Security (FDNS) unit of USCIS:
- Failure to Request and Photocopy Agent Identification.Upon entry to the site, whether it’s the regional center, NCE, or JCE, agents are expected to present identification showing they are authorized to conduct the investigation. Many times employers will acknowledge the agent’s identity, but fail to make a photocopy of the badge or card presented, and forget to request contact information. This makes contacting the agents subsequent to the visit difficult, whether it’s to provide further information or clarify a point that was raised during the interview or audit. Regional centers and their appointed contacts at JCEs and NCEs must make a habit of photocopying the agent’s identification but also, where such identification lacks specific contact information, request a business card containing a non-generic email address at which the agent may be reached directly.
- Leaving Agents to Wander the Site Unattended.It is not uncommon for employers to oblige FDNS agents in their request to inspect worksites. This does not mean, however, that designated contacts should leave agents to wander the site unaccompanied. As a matter of course, regional center contacts should direct agents to a neutral location before proceeding with questioning or document inspection in order to ensure the visit takes place in a controlled setting. However, if no such location is available or if the agent requests to tour the facility, designated contacts should be prepared to accompany agents in that endeavor.
There are a number of reasons why it is important for representatives to accompany agents at all stages of the inspection. First, it is standard procedure for FDNS agents to furnish reports summarizing their findings, and in the EB-5 context, these reports will be submitted to the Immigrant Investor Program Office. It will be difficult if not impossible to respond to questions about the inspected facility and activities that took place during a visit if the designated contact was not present to witness them.
Also, regional center representatives – and particularly those benefiting from Klasko’s compliance services – are pre-trained to respond to questions from agents that fall within the scope of the visit. Agents who are permitted to wander the site unattended may engage in discussions with others on the site who are not knowledgeable in the areas of inquiry, or are untrained to respond, and who may, inadvertently, throw the site visit off course.
Failure to Take Diligent Notes.
Current site visit protocol for H-1B, L-1 and R-1 site visits involves a follow-up report by FDNS, issued to an Immigration Services Officer, to which employers then have the opportunity to respond. Prompt and thorough responses are often the key to a successful site visit, and may even stand between a passing grade and escalation by USCIS to another agency based on an area of discrepancy that surfaced during the inspection, or unanswered questions to which the designated contact could not comfortably respond. In some cases, for example, FDNS site visits have triggered investigations by the Department of Labor. We previously noted in our blog on EB-5 site visits that USCIS is permitted to share information it uncovers with other agencies pursuant to established agreements between them, and the high likelihood that such arrangements may be brokered between USCIS and the SEC in the EB-5 context.
To avoid exacerbating an otherwise manageable situation, designated regional center representatives should be prepared to take diligent notes documenting the site visit and highlighting pressure points that might be the subject of follow-up questions. Depending on the length and depth of the investigation, it will be difficult to recall precisely what discussions transpired during the course of the visit. Therefore, it is of the utmost importance that designated persons prepare a diligent record of the encounter or assign someone else to do so, and be prepared to respond with specificity to follow-up requests or findings.
Responding to Questions to which you do not Know the Answer.
Employers subject to site visits commonly feel compelled to respond to each question that is asked of them, even if they are uncertain of the response or if the question is outside the scope of their knowledge. This creates the potential for representatives to give vague, misleading, or incorrect responses. While the inclination is to answer each and every question, there is good reason to resist that urge. One reason is that FDNS agents, while trained, may unintentionally veer into territories that are beyond the limits of EB-5 or ask questions that are not applicable to the situation.
One trend that Klasko has observed in its representation of clients undergoing L-1 site visits is that agents were sometimes confused in their line of questioning and raised issues that were pertinent to or required of H-1B petitioners, but not L-1s. For example, there is no obligation on L-1 employers to obtain a prevailing wage determination prior to filing the I-129 but employers were sometimes asked whether they had complied with this obligation. Given the disparity between the information contained in an I-129 versus an I-526, and the complexity of the EB-5 process, as well as the fact that EB-5 site visits are a new phenomenon, there is great potential that regional centers will see the same growing pains in their sites visits that L-1 employers observed – namely the potential for FDNS officers to pose questions that are outside of the bounds of the investigation. If questions seem particularly outside the realm of EB-5, regional center and other representatives should not attempt to answer them in an attempt to be thorough and should defer to the information of which they are certain.
- Failure to hire or contact a trained attorney who can spot issues during the site visit.As is evidenced from the above, there are many potential pitfalls in a site visit process that can produce a negative outcome, even where the employer or regional center is doing its best to comply fully with immigration regulations. Even the most prepared worksites can become overwhelmed by the process and fall back on bad habits or forget their training when actually confronted with an agent. One of the biggest mistakes employers and regional centers can make is to refrain from hiring or contacting their attorney during a site visit. Experienced immigration attorneys like those who make up the Klasko compliance team can oversee the document preparation process to ensure files are properly maintained and completed correctly for auditing, as well as listen to questions from agents with a trained ear. If questions are outside the scope of the site visit or require clarity, a trained attorney can and will interject. And most importantly, an attorney who is engaged during the course of the visit can note those areas of concern or confusion, and help the client prepare an acceptable follow-up response in short order.
For regional centers whose continued operation is dependent on the outcome of a site visit, the stakes are exceedingly high. And unfortunately, when an avoidable compliance problem surfaces, there is very little time and opportunity to rehabilitate it by retaining counsel after-the-fact. Regional centers, NCEs and JCEs are on alert that they will be subject to site visits, and therefore should not delay in their preparations while they have an opportunity to get it right the first time.