On April 24th, the Office participated in a stakeholder teleconference to discuss the extension of the Administrative Site Visit and Verification Program (ASVVP) to L1 visas. The ASVVP is a site-inspection program designed to complement the Department of Homeland Security’s existing anti-fraud efforts.

In announcing this move, the USCIS highlighted the purpose behind the effort…“as part of our ongoing commitment to strengthening the integrity of immigration benefit processing, USCIS is expanding the ASVVP to include L1 beneficiaries.” While the USCIS is well within its right to monitor the integrity of the L Visa program, it must be understood that this change comes at a time when the L-1 Visa program is undermined by inconsistent adjudication and a feeling among businesses that the process is extremely unwieldy and lacks transparency. See http://blog.kidambi.com/2014/03/06/california-service-center-issues-rfe-on-every-other-l-1b-petition/ and http://blog.kidambi.com/2013/09/03/we-are-not-open-for-business-the-death-of-the-l-1b-visa-program/

More importantly, the entire ASVVP program raises the standard of evidence set forth in immigration proceedings. For instance, the general standard of evidence in most immigration cases including the H and L programs is the ‘preponderance standard’. In other words, the standard is met if it can be shown that something is ‘more likely than not’ to be true. It does not require the severe standard applied to criminal cases (beyond a reasonable doubt), or even the higher standard of evidence reserved for certain marriage based cases (clear and convincing). In the case of the H and L processes, the burden is on the petitioner and therefore, the business that files the Petition to show that they are “more likely than not” entitled to the benefit. Shifting this burden to require businesses to prove ‘clearly and convincingly’ or through a site verification program, ‘beyond a reasonable doubt’ that they are entitled to the benefit is clearly a burden that was not intended to be imposed on the petitioner in the first place. See William H. Kuehnle, Standards of Evidence in Administrative Proceedings, 49 N.Y.L. SCH. L. REV. 829, 844-45 (2005) .

In July 2009 USCIS implemented the Administrative Site Visit and Verification Program (ASVVP) and uses the Office of Fraud Detection and National Security[1] (FDNS) to conduct unannounced post-adjudication site visits to verify information contained in randomly selected H-1B visa petitions. Possible actions taken when inspectors are unable to verify or validate information provided include further review by an adjudicator and potential issuance of a Notice of Intent to Revoke (NOIR), or referral to a FDNS field office for further investigation. See Testimony of Donald Neufeld Associate Director, Service Center Operations Directorate, U.S. Citizenship And Immigration Services, Before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement on “H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers.

The program is imperfect at best. Where the H-1B employee is employed in-house, there should be an easy way to verify the location and details associated with the work. However, when collaborative work is involved and the employee is housed in a third-party location, a site visit is extremely difficult to complete. In certain instances, employees telecommute from home and the site visit does not take into account such accommodations.

For an L-1 employee the task is more complicated because of the nature of the Visa itself – designed for intra-company transfers. What happens when the employee is traveling between the U.S. and the home country Office?
When the process is already complicated by a protracted and cumbersome adjudication process, it does not help to further complicate it by introducing an evidentiary process that is clearly at odds with the standard of evidence devised for these proceedings.

Hopefully, better sense will prevail and a more intuitive intake process devised in order to avoid enforcement-centric processing of L-1 petitions.

[1] The FDNS was established in May 2004