An FDNS officer can arrive at an H-1B employer’s office months after the petition was approved, unannounced, and ask whoever is at the front desk what the beneficiary does all day. For certain petition categories, USCIS conducts site visits after adjudication. ICE can issue a Notice of Inspection requiring production of Form I-9 records after the applicable notice period, and the Department of Labor may seek payroll and personnel records through its investigative authority. In each of these contexts, the employer’s response in the first hours can shape the record, preserve available defenses, and influence whether the matter remains limited or escalates. Most of the useful work happens earlier: designating a point of contact, retaining documents correctly, and ensuring that the personnel who will speak to a government officer understand what they may and may not say.
The Two USCIS Site Visit Programs
USCIS operates two distinct site visit programs, and the difference matters for employer preparation. The Administrative Site Visit and Verification Program, launched in July 2009, historically selected petitions at random for unannounced site visits. The Targeted Site Visit and Verification Program, introduced in 2017, uses a data-driven approach to select petitions for verification. Both are administered by the Fraud Detection and National Security Directorate, whose officers conduct fact-finding rather than law enforcement functions.
The petition types subject to site visits are specific. Under ASVVP, FDNS conducts compliance-review site visits on special immigrant religious worker petitions before and after adjudication, H-1B petitions after adjudication, L-1 petitions after adjudication, and EB-5 petitions before adjudication. TSVVP covers a different list, including H-1B, L-1A, H-2A, H-2B, and certain spousal-based immigrant petitions. An employer in a category outside these lists should not assume that site visits are impossible, but the programs themselves are defined by petition type.
FDNS officers verify the information submitted with the petition, confirm that the petitioning organization exists, review public records, take photographs, review documents, and interview personnel to confirm the beneficiary’s work location, workspace, hours, salary, and duties. They may also request to speak with the beneficiary directly.
Preparing for the Unannounced Visit
Preparation for a site visit begins long before an officer arrives. The employer should designate a primary point of contact and a backup, and reception staff should know to direct any government officer to that person immediately. The designated contact should be trained to ask for the officer’s name, title, and contact information, to take notes, and to contact counsel before answering substantive questions.
A recurring error is allowing an employee who is unfamiliar with the petition to speak with the officer. The officer may ask about the beneficiary’s job title, duties, and salary. Inconsistencies between the petition and the on-site answers can trigger a compliance review report that leads to a Request for Evidence or a notice of intent to revoke. The employer should ensure that the beneficiary understands the job title, work location, salary, reporting structure, and duties described in the petition. Where appropriate, the beneficiary may be given the relevant petition materials or a counsel-approved summary, though the full package may contain confidential financial, client, or third-party information that should not be distributed indiscriminately.
Historically, FDNS site-visit participation was described as voluntary: an officer would end the visit if the petitioner or beneficiary declined to participate and would complete the review using available information. For employers that sponsor H-1B workers, however, the 2024 final rule expressly authorizes USCIS to conduct inspections and provides that a petitioner’s or beneficiary’s refusal or failure to cooperate may result in denial or revocation of an H-1B petition. See 8 C.F.R. § 214.2(h)(4)(i)(B)(2). Employers should seek legal guidance promptly and respond in a coordinated, truthful, and document-focused manner rather than treating an H-1B site visit as consequence-free.
ICE I-9 Inspections and the Changing Enforcement Posture
ICE enforcement operates on a different track from USCIS site visits. An ICE inspection begins with a Notice of Inspection, which must be written and served. Once served, the employer has three business days to produce Forms I-9 and related documents. An administrative subpoena carries legal obligations to respond but does not authorize entry into non-public areas of the workplace; consent is required for that. A judicial warrant, by contrast, is issued by a judge and mandates compliance.
The stakes of an I-9 inspection increased materially in 2026. On March 16, 2026, ICE published an updated fact sheet that reclassified numerous Form I-9 completion errors from technical or procedural violations, which employers previously could correct within ten business days, to substantive violations subject to immediate fines. Missing dates in Section 1, incomplete List A, B, or C document data in Section 2, and failure to record the first day of employment are now treated as substantive. The updated fact sheet appears to displace key enforcement classifications previously reflected in the 1997 Virtue Memorandum, despite having been issued as agency guidance rather than through notice-and-comment rulemaking.
Employers should not assume that an error formerly considered correctable under the Virtue Memorandum remains eligible for the statutory correction period. Some clerical errors may still be classified as technical or procedural and remain correctable. Examples may include certain failures to record an employee’s complete name on continuation pages, to use the then-current form version, or to complete other specified clerical fields. The classification depends on the specific field, form version, and circumstances of the error, and employers should review the current ICE guidance with counsel rather than relying on prior memoranda.
The retention obligation is straightforward but frequently mismanaged. Employers must retain a completed Form I-9 for each employee required to complete the form for three years after the date of hire or one year after the date employment ends, whichever is later. An internal audit conducted under attorney-client privilege can identify and correct errors before ICE arrives, but the audit must be structured to preserve whatever protection is available.
Subpoenas, Privilege, and the Risk of Waiver
The privilege issues that arise in immigration compliance matters are not theoretical. An internal I-9 audit commissioned from counsel may be protected by the attorney-client privilege and the work product doctrine, but that protection can be lost. Attorney-client privilege and work-product protection generally do not shield the underlying Forms I-9, payroll records, or other business documents that exist independently of the legal review. The potential protection generally applies to confidential communications seeking or providing legal advice, and to certain attorney-directed analyses prepared in anticipation of litigation.
Courts may find an implied waiver where an employer affirmatively relies on the substance of a counsel-directed compliance review, discloses legal advice selectively, or offers testimony that places privileged audit findings at issue. Before referencing an internal audit in a filing, interview, or litigation position, counsel should assess whether doing so could trigger waiver. Where a government subpoena seeks documents that include privileged communications, counsel should consider the procedure for objecting to or moving to quash the subpoena rather than producing the documents and asserting privilege after the fact.
Witness Preparation and the Limits of Coaching
Witness preparation for a site visit or an investigative interview must respect the line between preparing a witness to testify truthfully and influencing testimony. The beneficiary and the signing official should understand the contents of the petition, the nature of their duties, and the purpose of the visit. They should be instructed to answer factual questions truthfully, avoid speculation, and say when they do not know the answer. If a question calls for legal interpretation, privileged information, or documents outside the witness’s knowledge, the witness should ask for clarification and the designated contact should consult counsel promptly.
An FDNS officer may request to speak with the beneficiary privately. The beneficiary should be prepared to answer truthfully and should not speculate. The employer should not coach, pressure, or direct the beneficiary’s answers. If the officer requests a private interview or access to a non-public worksite area, the designated contact should promptly consult counsel regarding the scope of the request and the employer’s obligations in the particular visa category.
A prompt, truthful, and counsel-coordinated response is often appropriate, but the employer should first assess the officer’s authority, the request’s scope, the applicable visa category, and any privilege or enforcement risks. Cooperation is generally the practical course in the absence of a legal basis for objection, but blanket assumptions about the officer’s entitlements or the employer’s obligations can create avoidable exposure.