In recent months there has been an uptick in immigration enforcement activity by the Department of Homeland Security (DHS), including worksite visits, which is in line with the stated policy of increased enforcement by the current administration. As a result, employers should expect to face more frequent worksite visits by the Fraud Detection and National Security (FDNS) department of U.S. Immigration and Citizenship and Immigration Services (USCIS). Employers should also expect increased Form I-9 and immigration compliance audits by U.S. Immigration and Customs Enforcement (ICE). It is more important now than ever that employers understand and properly implement processes in line with the relevant immigration compliance requirements in order to be prepared to minimize the risk of fines and other penal actions by DHS.

Increase in Worksite Visits by FDNS

Per 8 CFR §214.2(h)(1)(ii)(B) and Section 214(i)(2) of the Immigration and Nationality Act (INA), the H-1B visa program allows employers to hire highly skilled foreign workers in specialty occupations which require at least a bachelor’s degree or its equivalent in a specialized field. The regulations at 8 CFR §214.2(h)(4)(i)(B)(1) require that, in filing the H-1B petition, employers attest to complying with the related regulatory provisions by both the U.S. Department of Labor (DOL) and USCIS.

DOL’s related compliance provisions at 20 CFR §655.760(a) require retention by employers of supporting documentation pertaining to wage attestations in files available for public examination, known as “Public Access Files” (PAFs), as well as strict adherence to the information provided regarding the specialty occupation position and worksite location. Over the years, FDNS agents have visited H-1B sponsoring employers, requesting to interview the H-1B employees and their supervisors, as well as to review the PAFs retained in connection with the H-1B petitions filed. The goal of these visits and interviews is to ensure that H-1B workers are employed pursuant to the terms of the petition and that the required documentation is properly maintained.

On April 3, citing a desire to provide even further protections to qualified U.S. workers, USCIS announced it would implement a new targeted approach with the stated goal of detecting and combating fraud and abuse in the H-1B visa program. See, Combating Fraud and Abuse in the H-1B Visa Program, USCIS, April 3, 2017, www.uscis.gov. According to the USCIS announcement, these targeted worksite visits by FDNS agents will enable USCIS to identify employers not complying with their duty to make a bona fide attempt to recruit U.S. workers and their duty to not displace qualified American workers with foreign employees.

USCIS’ targeted approach is expected to include increased worksite visits for employers identified by the agency as potentially committing fraud and abuse of the H-1B program. These would include those whose business information USCIS is unable to confirm through commercially available data, those who send H-1B employees to work off site or themselves have on-site contractors, as well as “H-1B dependent” employers with a high ratio of H-1B employees to U.S. workers. According to the April 3 guidance, although USCIS will continue conducting random and unannounced worksite visits across the country to identify employers who are abusing the system, those employers who fall under one of the aforementioned categories are more likely to be targeted for enforcement.

As part of its efforts, USCIS has also established an email address which will allow individuals to directly submit tips regarding alleged violations by employers and any other information about potential fraud or abuse in employment-based immigration programs. USCIS plans to utilize this information for its investigations and referrals to ICE for possible prosecution.

Increase in Form I-9 Audits and Worksite Enforcement by ICE

Pursuant to 8 CFR §274a.2(a)(2) and the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from knowingly hiring and employing individuals who do not have proper U.S. work authorization. Since Nov. 6, 1986, IRCA requires employers to complete Forms I-9 for all employees, maintaining the forms together with documents evidencing the employee’s identity and work authorization for three years from the date of hire or one year from the date of termination, whichever is later. Additionally, the anti-discrimination clause of the act at INA §274B(a)(6) mandates equal treatment of new hires, prohibits unfair documentary practices during the Form I-9 process, and prohibits discriminatory treatment of new employees based on national origin or citizenship status.

At the time of completion of Form I-9, the employer or a company representative is required to examine the new hire’s original documents confirming identity and U.S. work authorization. Pursuant to the regulations at 8 CFR §274a.2(b)(1)(ii), employers only have three days subsequent to the new hire’s start date to complete Form I-9. Great care must be taken in completing the form, as well as examining the presented documents, as the manner and timing of form completion and the documents presented by new hires are subject to strict guidelines. Where these strict guidelines are not followed, ICE can make a finding of technical and/or procedural violations, assessing fines for each violation. Effective Aug. 1, 2016, the penalties for Form I-9 violations increased significantly for both substantive and technical violations, as published at 81 FR 42491. ICE can now fine employers as much as $2,156 per Form I-9 for paperwork violations, with penalties ranging from $539 to $21,563 per violation for knowingly employing individuals not authorized to work in the U.S. under INA §274A(a)(1)(a).

When conducting audits, ICE agents present themselves in person at employer worksites to serve a Notice of Inspection, requesting to review employers’ Forms I-9 and a host of other documents; once a Notice of Inspection is served, employers have only days to submit requested documents. While ICE may randomly select employers for an audit, tips provided by prior employees or others can often trigger an ICE audit as well.

Unlike USCIS, ICE has not yet issued a directive regarding an increase in audits and worksite inspections of employers. However, ICE has announced a general increase in its enforcement actions, and recent reports indicate more frequent ICE audits, resulting in more voluminous document requests and higher fines.

How to Prepare for Government Worksite Visits and Form I-9 Audits

It is imperative that employers take a proactive approach to develop, implement and maintain compliance policies consistent with the applicable regulations. In light of more frequent and expansive government audits, employers—particularly those with high turnover rates—should review their compliance practices to minimize the risk of fines and other penal actions by ICE.

With assistance of counsel, employers can conduct internal audits to gauge their current level of compliance in order to take appropriate steps to remediate any issues.

Employers should also develop detailed Form I-9 policies and procedures and conduct frequent staff trainings to stay compliant with the latest rules to eliminate the chance for errors and mistakes. It is recommended that employers work with immigration counsel to create a detailed Form I-9 policy manual outlining the specific steps for completion and maintenance of Forms I-9 and other documents.

Furthermore, in order to avoid or minimize the risk of government penalties, employers must develop procedures and train staff to properly handle FDNS site visits. Employers should also ensure that all records, including public access files, are properly assembled, updated, maintained and timely purged. Finally, since many employment-based visa categories (including H-1B and L-1) are specific to position, employer and worksite location, it is also important for companies to notify USCIS should changes occur to the conditions of employment by filing amended visa petitions with updated documentation. On July 21, 2015, USCIS issued a Policy Memorandum entitled “USCIS Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC,” wherein it instructed that amended filings are absolutely required in cases of material changes with respect to the terms of employment. Failure to properly advise the immigration service of a material change in employment may lead to findings of unlawful employment and resulting fines should a worksite visit occur.

Finally, it is imperative that employers and human resources staff be prepared in the event of a worksite visit by a FDNS or ICE agent, designating specific employees onsite trained to interact with immigration agents. Employees likely to be approached by an agent should be briefed on the employer’s policies for handling such visits. Management should also be advised to contact the employer’s immigration counsel prior to communicating with government agents conducting worksite visits and audits. Documentation such as Forms I-9 should not be turned over to an immigration agent unless presented with a search warrant, and information should not be provided unless specifically requested.

Ultimately, frequent trainings, internal audits, and development and maintenance of specific company procedures and protocols in anticipation of worksite visits by USCIS and Form I-9 audits by ICE will be invaluable given the recent increase in immigration enforcement activity by the current administration.•

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