Challenging Unlawful Demands and Site Visits of USCIS’ Fraud Detection and National Security Directorate (FDNS)
Fraud Investigation, Detective Files
By Seyfarth Shaw LLP on June 14, 2022
By: Angelo A. Paparelli [1]
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.
Multiple agencies within the Executive Branch are charged with responsibility to investigate and enforce U.S. immigration laws. To immigration lawyers, the acronyms and abbreviations are familiar. There is the WHD (the Wage and Hour Division of the U.S. Department of Labor), the IER (the Immigrant and Employee Rights unit in the Justice Department), the HSI (Homeland Security Investigations unit) of ICE (U.S. Immigration and Customs Enforcement), and the BDS (the Bureau of Diplomatic Security in the State Department), among others. Except in criminal law enforcement matters of urgency and with the approval of a federal judge, all of these enforcement agencies provide the subject of investigation with prior written notice when an investigation is initiated. In other words, not one of them routinely conducts unannounced visits to business establishments or personal residences.
https://www.lexblog.com/2022/06/14/challenging-unlawful-demands-and-site-visits-of-uscis-fraud-detection-and-national-security-directorate-fdns/
