For an Immigration Attorney to formally represent an employer during a Fraud Detection and National Security (FDNS) site visit related to H-1B compliance, the following formalities must be completed:
1. Obtain a Form G-28 (Notice of Entry of Appearance as Attorney)
- The G-28 form must be properly completed and signed by the employer (Petitioner) and the attorney.
- This notifies USCIS and FDNS officers that the attorney is authorized to represent the employer.
- Without a valid G-28, FDNS officers are not obligated to speak with the attorney.
📌 Important: FDNS officers may arrive unannounced and refuse to delay the visit for attorney presence. However, the employer can request a reasonable delay to contact their attorney.
2. Employer Should Designate the Attorney as Company Representative
- The employer should draft an internal authorization letter stating that the attorney is authorized to communicate on their behalf regarding the H-1B petition.
- This letter should be:
- Signed by an authorized company official (e.g., HR Director, CEO, or General Counsel).
- Kept readily available in case of an FDNS site visit.
3. Prepare a Company Representative (Attorney’s Role May Be Limited)
- FDNS officers usually expect to speak directly with the employer and H-1B employee.
- The attorney cannot obstruct or refuse cooperation, but they can:
- Advise the employer on their rights.
- Ensure compliance with regulations.
- Take notes during the visit.
- Assist in responding to follow-up requests.
📌 Best Practice: Employers should train HR personnel or managers on what to expect and how to involve their attorney properly.
4. Ensure H-1B Compliance Documentation is Ready
- The employer should keep required H-1B documentation readily available in case of an FDNS site visit.
- The attorney should ensure the following documents are complete and accurate:
- Public Access File (PAF) for the H-1B employee.
- I-129 Petition & H-1B approval notice (I-797).
- LCA (Labor Condition Application).
- Payroll records showing proper wages.
- H-1B employee’s work location matches the petition.
- Company information (org chart, business license, office lease, etc.).
5. Request a Business Card from the FDNS Officer
- If an FDNS officer visits, the employer (or attorney) should request:
- The officer’s business card or contact details.
- Details about the scope of the investigation.
- Time to consult with legal counsel before responding to complex questions.
6. Follow Up with a Written Summary
- After the site visit, the attorney should:
- Document everything that was asked and answered.
- Advise the employer on any potential issues or next steps.
- Submit a response to any formal FDNS follow-up requests.
Key Takeaways
✅ Form G-28 is required for the attorney to officially represent the employer.
✅ An internal authorization letter should be drafted by the employer designating the attorney as the company representative.
✅ Employers should be prepared to answer FDNS questions directly (attorneys have a limited role during site visits).
✅ All H-1B compliance documentation should be readily available for review.
✅ Request FDNS officer contact details and follow up with an attorney-written summary after the visit.
Even after an H-1B employer sends a letter to FDNS authorizing an Immigration Attorney to represent them, FDNS officers are not required to communicate exclusively with the attorney. FDNS officers can and often will continue direct correspondence with the employer for several reasons:
Key Points on FDNS Communication Policy:
- FDNS Officers Are Not Bound by Attorney Representation Rules Like USCIS Is
- Unlike USCIS adjudications, where an attorney’s G-28 on record generally means USCIS communicates through the attorney, FDNS officers do not have to follow the same protocol.
- FDNS investigations are fact-finding and administrative in nature; they are not adversarial legal proceedings.
- FDNS Can Directly Contact the Employer and Employees
- FDNS officers have the discretion to visit worksites, ask for records, and interview employees directly, with or without the attorney present.
- Even if an attorney is authorized, FDNS officers may still contact the employer to confirm details, request additional documentation, or conduct interviews.
- Employer Can Request Attorney Presence, But FDNS May Not Wait
- The employer can request that all FDNS communications go through the attorney, but FDNS officers are not legally required to comply.
- If an FDNS site visit occurs, officers may proceed with interviews without waiting for the attorney.
- In urgent cases, FDNS may notify the attorney afterward rather than waiting for them before speaking with the employer.
- Attorney Can Request to Be Copied on Correspondence
- Although FDNS officers may still contact the employer, the attorney can request that FDNS copies them on all written communication.
- This does not guarantee compliance, but many officers will respect this request as a courtesy.
Best Practices for Employers After Authorizing Attorney Representation:
✔ Instruct key personnel (HR, managers) to politely request attorney involvement before answering FDNS questions.
✔ If FDNS contacts the employer directly, the employer should notify the attorney immediately to ensure proper legal guidance.
✔ Keep a record of all communications with FDNS, even if direct correspondence occurs with the employer.
Fraud Detection and National Security (FDNS) site visits are conducted primarily to verify information in immigration petitions, rather than to formally accuse or prosecute employers or employees.
Breaking It Down:
- Fact-Finding vs. Legal Proceedings
- Fact-Finding:
- FDNS officers conduct unannounced site visits to confirm whether the H-1B employer is complying with the terms of the petition.
- They verify that the H-1B employee is working in the position, location, and salary stated in the petition.
- The goal is to gather information, not immediately impose penalties.
- Not a Legal Proceeding:
- Unlike a court hearing or deportation/removal proceedings, FDNS investigations do not involve legal arguments, cross-examinations, or a judge’s ruling.
- FDNS officers cannot issue fines, revoke visas, or deport employees directly—they report findings to USCIS, which then decides on further action.
- Fact-Finding:
- Administrative in Nature
- FDNS investigations fall under USCIS’s administrative authority, meaning they focus on policy compliance and fraud prevention rather than criminal prosecution.
- If FDNS finds inconsistencies or violations, they may:
- Refer the case to USCIS for further review (which could lead to a Notice of Intent to Revoke (NOIR) the H-1B petition).
- Refer cases of suspected fraud to ICE (Immigration and Customs Enforcement) for potential enforcement actions.
- Provide information to the Department of Labor (DOL) if wage violations are suspected.
- Employers and Employees Are Not on Trial
- FDNS officers do not act as prosecutors or immigration judges.
- Employers and employees are not required to prove their innocence but should cooperate and provide accurate information.
- If there is an issue, the employer has a chance to explain or correct the situation before USCIS takes action.
Why This Distinction Matters
✔ Employers and attorneys should treat FDNS visits seriously but understand that these visits are not the same as formal legal enforcement actions.
✔ Employers have the right to have an attorney present, but FDNS officers do not need attorney approval to proceed with their visit.
✔ If a serious issue arises, legal action only happens later—through USCIS adjudication, DOL investigations, or ICE referrals.
Note that statements made to an FDNS officer during a site visit can potentially be used in a Department of Justice (DOJ) Grand Jury investigation, especially if the case escalates into a criminal fraud or immigration violation case.
How FDNS Statements Can Be Used in a Grand Jury Investigation:
- FDNS Reports Are Shared with Other Agencies
- FDNS operates under USCIS but collaborates with multiple federal agencies, including:
- Department of Justice (DOJ)
- Immigration and Customs Enforcement (ICE)
- Department of Labor (DOL)
- If an FDNS investigation uncovers potential fraud, misrepresentation, or other violations, the findings may be referred to the DOJ or ICE for further investigation.
- FDNS operates under USCIS but collaborates with multiple federal agencies, including:
- FDNS Statements Can Be Evidence in Criminal Cases
- While FDNS itself does not prosecute cases, the information they collect can be used by the DOJ if a criminal investigation is opened.
- False statements or misrepresentations made to an FDNS officer can be considered evidence of fraud, which can be presented to a Grand Jury.
- Under 18 U.S.C. § 1001, knowingly making false statements to a federal officer (including an FDNS officer) is a federal crime.
- Grand Jury Investigations Are Secret but Use Evidence from Multiple Agencies
- A Grand Jury investigation is used to determine if there is enough evidence to indict someone for a federal crime.
- If FDNS findings suggest fraud, visa abuse, or criminal misrepresentation, DOJ prosecutors can use statements from an FDNS interview as part of the evidence.
- Statements from Employers and Employees Are Both at Risk
- Employers: If an employer misrepresents job details, wages, or worksite locations, they could face visa fraud charges.
- Employees: If an H-1B beneficiary gives misleading answers about their job duties, work location, or employer relationship, that information could also be used in an investigation.
Best Practices for Employers and Employees During FDNS Site Visits
✔ Be truthful and consistent—do not provide false or misleading information.
✔ If uncertain, request to consult with legal counsel before answering.
✔ Document all interactions with FDNS in case issues arise later.
✔ Do not assume FDNS visits are routine—statements can have legal consequences.
Key Takeaway:
If an FDNS visit occurs and serious concerns arise, consulting an immigration attorney immediately is highly recommended.
FDNS interviews are not criminal investigations, but statements made during them can be used in DOJ Grand Jury proceedings if fraud is suspected.
Employers and employees should always be truthful and cautious when speaking to FDNS officers.
an H-1B employer (or any individual) can invoke the Fifth Amendment right against self-incrimination during an FDNS site visit, but there are limitations to when and how it applies.
Understanding the Fifth Amendment in FDNS Investigations
The Fifth Amendment of the U.S. Constitution states that no person shall be compelled to be a witness against themselves in a criminal case. This means:
- An individual (including an H-1B employer) cannot be forced to answer questions if the response could be used in a criminal investigation against them.
- However, the Fifth Amendment applies only to individuals, not corporations or business entities.
- Refusing to answer FDNS questions may trigger further scrutiny, but it is a legal right in certain circumstances.
When an H-1B Employer Can Use the Fifth Amendment
✅ If answering a question could provide evidence of a crime (e.g., visa fraud, misrepresentation, wage violations), the employer may say:
- “I respectfully invoke my Fifth Amendment right and decline to answer that question.”
✅ If the employer is personally at risk of criminal liability, they can refuse to answer questions that could be self-incriminating.
✅ If the employer suspects that the FDNS inquiry could escalate into a DOJ or ICE investigation, they should consult an attorney before responding.
When the Fifth Amendment May NOT Apply
❌ If the employer is speaking on behalf of the company as an entity – A business does not have Fifth Amendment rights, but an individual employer does.
❌ If the questions are purely administrative and do not involve potential criminal conduct – Example:
- “How many employees work in this office?”
- “Can I see your H-1B Public Access Files?”
- These are standard compliance questions, and refusing to answer may raise red flags.
❌ If there is a legal obligation to provide certain records – Employers are required to maintain H-1B Public Access Files, payroll records, and I-9 forms and must provide them when requested.
Risks of Refusing to Answer FDNS Questions
- While it is legal to invoke the Fifth Amendment, refusing to answer FDNS officers may raise suspicion and increase the likelihood of USCIS issuing a Notice of Intent to Revoke (NOIR).
- If an employer refuses to cooperate, FDNS may escalate the case to ICE or the DOJ, which could lead to subpoenas or further legal action.
- A balance must be struck between cooperation and protecting legal rights.
How a Company Officer Should Handle a Criminal Investigation
1. Understand That Statements Can Be Used Against You
- Any statement made to government investigators, FDNS, ICE, or DOJ can be used in criminal proceedings.
- Even casual conversations with investigators can be treated as admissions.
- Lying to a federal agent is a crime under 18 U.S.C. § 1001 (False Statements Act), even if the lie was unintentional.
✔ Best Practice: Say nothing without legal counsel and assume all conversations are recorded.
2. Invoke the Fifth Amendment If Necessary
- As an individual, you have the right to remain silent to avoid self-incrimination.
- If asked questions that could implicate you personally, say:
- “I respectfully decline to answer on the advice of my attorney.”
- “I invoke my Fifth Amendment right against self-incrimination.”
✔ Best Practice: Do not assume you must answer every question. If in doubt, defer to legal counsel.
3. Engage Legal Counsel Immediately
- Corporate Counsel vs. Personal Counsel:
- Corporate attorneys represent the company—not necessarily you as an individual.
- You may need a separate personal criminal defense attorney if there is a risk of individual liability.
✔ Best Practice: Consult an attorney before speaking to investigators.
4. Do Not Destroy or Alter Documents
- Obstruction of justice (18 U.S.C. § 1519) is a serious federal crime.
- Shredding files, deleting emails, or modifying records can result in additional charges.
- Even telling employees to “clean up” documents can be considered obstruction.
✔ Best Practice: Preserve all documents and follow legal guidance.
5. Handle Employee Testimony Carefully
- Employees may be subpoenaed or interviewed separately.
- Do not instruct employees on what to say—this can be witness tampering (18 U.S.C. § 1512).
- If an employee asks what to do, say:
- “You are free to answer truthfully, but you may also consult an attorney before speaking.”
✔ Best Practice: If employees will testify, ensure they know their rights and consult legal counsel.
6. If the Company is Subpoenaed, Respond Properly
- A subpoena means the company must provide documents or testimony.
- The company’s lawyer can:
- Negotiate the scope of the subpoena.
- Request more time to comply.
- Challenge an overbroad request.
✔ Best Practice: Do not ignore a subpoena—consult an attorney immediately.
7. Avoid Internal Email or Discussions About the Investigation
- Internal emails can be subpoenaed and used against you.
- Do not speculate, discuss, or admit wrongdoing in company messages.
- If employees ask about the case, direct them to legal counsel.
✔ Best Practice: Keep discussions offline and confidential.
8. Consider Voluntary Disclosure (If Recommended by Counsel)
- In some cases, self-reporting misconduct can reduce penalties.
- Federal agencies sometimes offer cooperation credit if the company voluntarily discloses wrongdoing.
- However, this must be carefully evaluated by an attorney.
✔ Best Practice: Do not self-report without legal advice.
9. If Arrested or Indicted, Follow Legal Procedures
- Do not resist arrest—remain silent and ask for an attorney.
- Do not discuss the case with anyone except your lawyer.
- Bail and plea negotiations should be handled through legal representation.
✔ Best Practice: If facing charges, follow all legal advice strictly.
Key Takeaways
✔ You have the right to remain silent—use it if self-incrimination is a risk.
✔ Corporate attorneys represent the company, not you personally—you may need separate legal counsel.
✔ Do not alter records or tell employees what to say—this can lead to obstruction charges.
✔ If subpoenaed, do not panic—work with an attorney to respond properly.
✔ Avoid internal discussions about the investigation—assume all communications can be used in court.
1. Attorneys Can Advise Clients, But Cannot Speak for Them
- An attorney cannot invoke the Fifth Amendment on behalf of the employer—only the employer can personally do so.
- However, an attorney can interject and privately advise the employer before they respond.
- If the attorney senses that a question is problematic, they may say:
- “Before answering, I would like to confer with my client.”
- “My client will not be responding to that question at this time.”
- “We respectfully decline to answer that question.”
✅ Best Practice: If a risky question is asked, the attorney should immediately request to speak privately with the employer before they answer.
2. The Employer Has the Right to Invoke the Fifth Amendment
- If an FDNS officer asks a question that could lead to criminal liability (e.g., fraud, misrepresentation, wage violations), the employer can say:
- “I respectfully invoke my Fifth Amendment right and decline to answer.”
- “On the advice of counsel, I will not be responding to that question.”
- FDNS officers cannot force the employer to answer, but they may escalate the case if they suspect fraud.
✅ Best Practice: The employer should stay calm, remain polite, and only invoke the Fifth Amendment when necessary—overuse may raise suspicion.
3. Risks of Taking the Fifth in an FDNS Site Visit
- FDNS is an administrative agency, not a criminal court, but statements made can later be used in a criminal investigation.
- Invoking the Fifth can raise red flags, leading to:
- A Notice of Intent to Revoke (NOIR) the H-1B petition.
- A referral to ICE or DOJ for further investigation.
- An intensified FDNS follow-up or deeper audit of the company’s compliance.
✅ Best Practice: The attorney should only advise invoking the Fifth if there is a genuine risk of criminal exposure. If the employer simply needs time to verify records, it may be better to defer the question instead.
4. Alternative Attorney Strategies During FDNS Visits
Instead of immediately invoking the Fifth Amendment, an attorney may:
- Redirect the FDNS officer:
- “We would like to provide a written response after reviewing our records.”
- Limit the employer’s responses to only what is required:
- If the officer asks about wage payments, the attorney may advise the employer to only confirm that payroll records exist and offer to provide them later rather than answering specifics on the spot.
- Postpone the interview:
- “We need additional time to gather the requested information and will provide a response in writing through counsel.”
✅ Best Practice: The attorney should strategically intervene before a self-incriminating statement is made while ensuring compliance.
Conclusion:
FDNS can continue communicating directly with the H-1B employer, even if an attorney is authorized. However, employers can request that communications go through the attorney, and FDNS may honor this request as a professional courtesy. Ultimately, FDNS retains discretion in how they conduct their investigations.
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