Maintaining status: what USCIS, consulates and site visits actually test

Four checkpoints, one question

US employment-based immigration tests the same question at four points: when USCIS adjudicates the petition, when a consular officer decides the visa, when a Customs and Border Protection officer decides admission, and when USCIS or the Department of Labor verifies the case after approval. The question is whether the employment is what the papers say. Is the employer a real business doing what it claims? Is the role as described, at the stated worksite, at the stated wage? Does the employer control the work? Is the person actually qualified and actually doing it? The L-1A page on this site puts it simply: investment announcements and senior titles do not establish eligibility. Neither do approval notices once the facts have moved on.

The genuine role

For an L-1A manager or executive the test is the statutory definition in INA 101(a)(44): who the person supervises, what they decide, who performs the operational work. A manager without subordinates in a business that cannot afford to free them from production is a worker with a title, and USCIS's requests for evidence in these cases ask for organisation charts, subordinates' duties and payroll because that is where the answer lies. For an L-1B specialist the test is whether the knowledge is specialised to the group rather than general to the profession. For an H-1B the test is whether the role genuinely requires a degree in a specific specialty, shown by the duties and by what the employer and the industry require of others in the role. For an O-1 the test is whether the itinerary's engagements are at the level of the acclaim claimed. For an E-2 investor the test is whether the enterprise is real, non-marginal and directed by the investor. In each case the role must be true at filing and remain true; a role that drifts into something else, however useful to the business, is a role outside the approval.

Employer control and the worksite

Control is a recurring theme. H-1B regulations require an employer-employee relationship in which the petitioner has the right to control the work, and third-party placements are examined through contracts, statements of work and the client's own description of who supervises. The Labor Condition Application is tied to places of employment, and a move to a new area of intended employment outside the LCA's coverage generally requires a new LCA and an amended petition before the move. L-1 petitions involving work at a client site must show that the person remains controlled and supervised by the petitioner and that the arrangement is not labour for hire. The worksite is also the first thing a site visit checks.

USCIS's Fraud Detection and National Security Directorate conducts administrative site visits, commonly unannounced, to verify petitions, particularly H-1B and L-1. Officers confirm that the employer exists at the address, that the person works there in the described role, and that the wage is paid, and they may interview the beneficiary and managers. A worksite that USCIS was never told about, a beneficiary nobody at the address recognises, or a manager found doing the operational work are findings that lead to revocation and to heightened scrutiny of the employer's future petitions. The Department of Labor's Wage and Hour Division separately investigates LCA compliance and can order back wages and penalties.

Payroll and the wage

The H-1B wage attestation on the LCA is the higher of the actual wage paid to similarly employed workers and the prevailing wage for the occupation and area, and it must be paid for the whole period of employment, including non-productive time caused by the employer; benching without pay is a violation. The employer must keep a public access file containing the certified LCA, the wage rate, the prevailing wage source and the actual wage memorandum, and must post or give notice of the filing. For immigrant petitions the parallel requirement is ability to pay the offered wage from the priority date, shown by annual reports, tax returns or audited accounts, and USCIS examines actual payroll where the person is already employed. For E-2 the question is whether the enterprise generates more than a minimal living; for L-1 and EB-1C whether both entities are doing business, evidenced by revenue, contracts and payroll rather than registrations.

Consulates and ports of entry

A petition approval is not a visa and a visa is not admission. Consular officers decide whether the applicant qualifies for the classification and, for temporary-intent categories such as B-1, TN and J-1, whether the presumption of immigrant intent under INA 214(b) is overcome. For blanket L applications they issue only where the case is clearly approvable and refuse under INA 221(g) where there is doubt. For H-1B beneficiaries outside the United States they now also verify, under the entry proclamation and its implementing guidance, whether the required payment or an exemption applies. Officers at ports of entry decide the class and period of admission recorded on Form I-94, question the purpose of a visit, and refuse admission to a business visitor whose itinerary looks like work or a TN applicant whose role does not match a listed profession, with no appeal. Travel during a pending change of status or extension, or after a material change in the employer's circumstances, should be reviewed before departure, because the consular and port stages re-test everything.

Record-keeping as the method

Compliance in this system is a matter of records, kept as the facts happen. For employers: the public access file and LCA postings; I-9 files; organisation charts maintained as staffing changes; a register of each sponsored employee's worksite, role, wage and admission expiry; contracts for third-party placements; evidence that both entities in an L-1 group continue to trade; and a procedure that routes any change of role, location, hours or corporate structure to immigration review before it is implemented. For individuals: every I-94, approval notice and visa; pay slips showing the attested wage; a travel log for recapture and continuous-residence purposes; and, for J-1 participants, the DS-2019 and SEVIS record kept current through the sponsor. Where a change is unavoidable, the amended petition or new LCA is filed before the change, and the record shows it.

The mobility capital view and the compliance view coincide here. A role that is real, controlled by the employer, performed at a known worksite and paid at the attested wage is both a defensible immigration case and the kind of work that develops the person. A placement that exists to hold a status is neither, and the four checkpoints exist to find it out.