Kentucky Service Center Audit of Nonimmigrant Visa Petitions, Including Unannounced Telephonic Contact with Employers

Courtesty of AILA.org (American Immigration Lawyers Association):

The Department of State (DOS) Visa Office has confirmed at the March 24, 2010, AILA/DOS Liaison meeting that the Kentucky Consular Center (KCC) has commenced verification of information contained in nonimmigrant visa petitions received from the U.S. Citizenship and Immigration Services (USCIS) (AILA InfoNet Doc. 10072868). Verification of information includes telephonic contact with petitioners related to factual aspects contained in the petition.

Background:

On November 17, 2007, DOS instructed consular posts that they must verify the details of approved NIV petitions through the Petition Information Management Service (PIMS) via the Consular Consolidated Database (CCD). Consular officers access the details of approved nonimmigrant visa petitions through the CCD in a PIMS report, which links an approved petition to a base petitioner record allowing superior tracking of NIV petitioner and petition information. The electronic PIMS record created by the KCC is the primary source of evidence used by consular officers to determine nonimmigrant visa (NIV) petition approval. In addition to the information submitted by the petitioner on the 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 beneficiaries and their proposed U.S. employment.

Petitioner Reviews:

AILA has been advised that lack of information on the petitioner in the USCIS Computer Linked Information Management System (CLAIMS) system has resulted in DOS’ decision to create a base petitioner record as part of the PIMS report for all first time 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.

Beneficiary Reviews:

The DOS has also informed the AILA DOS Liaison Committee that the KCC has initiated a pilot program for verifying information related to beneficiaries and proposed U.S. employment. These checks are completed at random and are primarily completed through telephonic contact with petitioners. The telephonic contact by KCC is unannounced and should be anticipated to 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 of the beneficiary review are normally finalized within two days and available to consular officers. Consular officers are instructed to review the report, 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.

Practice Pointers for KCC Telephonic Reviews:

The following practice pointers mirror those offered for the USCIS Office of Fraud Detection and National Security (FDNS) site visits (AILA InfoNet Doc. 09100123). 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, counsel should obtain written confirmation that the petitioner has 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. If the employer’s representative lacks personal knowledge of any material fact, counsel should insist upon such additional investigation as is necessary to confirm the accuracy of such fact prior to accepting the signed petition for filing.

2. Confirm that the copy of the application forms created for transmission to the KCC is a complete and accurate copy of the original petition that was reviewed by the employer. Note that KCC scans only selected documents from the file, not all items submitted, so the FPU contractors will not have the entire petition. KCC scans the I-129 Petition forms with supplements (G-28s, Labor Condition Applications (ETA-750, 9035 & 9089), Petitioner Support Letters); Experience documents (such as resumes or letters from previous employers); Financial documents (tax forms only); Affidavits; Itineraries; and Education documents.

3. If counsel learns at any time that material facts contained in the petition or supporting documents are false, counsel must advise the client of the need to file an amended petition in order to correct the record or to withdraw the petition and otherwise comply with the H-1B regulations with respect to termination of the beneficiary’s employment. If the client refuses to agree to accept these recommendations, counsel should withdraw from representation of the client with respect to the petition containing the fraudulent representations and otherwise terminate the client.

4. 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 Petitioner even after visa issuance.

5. Clients should be advised to 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. Attorneys should confirm that the person contacting the Petitioner on behalf of the KCC is in fact one of the 15 contractors designated by the KCC. 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 client determine which agency it is providing information to in the event follow up is needed.

6. Counsel for the petitioner should be advised 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.

7. Clients should be advised 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 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.

8. Clients should be advised to 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.

9. 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.

10. 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.