WORKSITE VISITS AND AUDITS
With the Trump Administration recently announcing that it would continue immigration raids at worksites and increase the intensity of its work-authorization audits, employers should take steps now to ensure they are prepared to respond if agents appear at their doorstep.
The U.S. Department of Homeland Security (“DHS”) has taken a three-pronged approach to enforcing immigration laws at worksites:
-
- Immigration and Customs Enforcement (“ICE”) is raiding worksites of employers in search of unauthorized workers based on data supplied, in part, by U.S. Citizenship and Immigration Services (“USCIS”). Typically, USCIS processes immigration benefits like visas and green cards, while ICE enforces immigration laws within the United States, including investigations, detentions, and deportations. The Trump Administration, however, has assigned about 450 USCIS agents to work with ICE offices across the country to identify worksites with unauthorized workers. It is also identifying targets through employee social media posts with anti-American sentiment, deficient immigration records earmarked by artificial intelligence, and computer applications that track the movements and criminal record of immigrants.
-
- ICE is dramatically increasing audits of employers’ Forms I-9, which are used to track each employee’s identity and work authorization. Since January 20, USCIS has conducted 2,271 site visits to workplaces, resulting in monetary penalties for employers as well as criminal referrals.
-
- USCIS is conducting unannounced visits to ensure that employers are complying with employment-based visa requirements such as paying H-1B workers the prevailing wage, making sure L-1 visa holders are working in executive or managerial roles, and verifying the visa holder’s work location, physical workspace, hours, salary and duties.
To minimize potential violations and business interruptions, employers should prepare their worksites now including by developing a written plan detailing the steps employees should follow in the event of a raid or audit.
Worksite Raids
During a worksite enforcement raid, ICE agents appear unannounced accompanied by other law enforcement agents, including those from DHS’s Homeland Security Investigations, the Department of Labor, and the Department of Justice.
To prepare for this, employers should consider the following:
-
- Designate a Response Team that includes operations managers, human resources managers, receptionists, and immigration counsel.
-
- Develop a written response plan that assigns specific tasks to each member of the Response Team and explains the procedure for handling document requests and employee interviews.
-
- Train the Response Team and other members of the management team how to respond if agents arrive.
-
- Know the difference between a judicial warrant issued by a judge and an administrative warrant issued by ICE. Unlike judicial warrants, administrative warrants do not give agents authority to enter private spaces without consent.
-
- Prepare a communications plan that informs employees of their rights, such as the right to remain silent and to request an attorney, and instructs employees to remain calm, continue working, and not to flee.
-
- Conduct a Form I-9 self-audit to verify all employees have a properly-completed Form I-9.
Form I-9 Audits
All employers must complete and retain a Form I-9 for every person they hire to verify the employee’s identity and authorization to work in the United States. Employees must complete Section 1 of Form I-9 by the conclusion of their first day of employment. Employees also must present documents that establish their identity and employment authorization within the first three business days of starting work. Employers have three business days to examine the documents and complete Section 2 verifying the information appears reasonably genuine.
Although the process seems straightforward, employers and employees may fail to complete the forms correctly, leading to monetary penalties of $288 to $2,861 per Form I-9. Employers also face monetary penalties of $716 to $5,724 as well as criminal charges if they knowingly hire or continue to employ unauthorized workers or engage in document fraud.
Employers should not wait for ICE to send an audit notice to find out whether their Forms I-9 are in order. Rather, employers should conduct a self-audit that verifies all employees have a properly completed Form I-9 and that the forms are signed and dated by the employee and employer representative. Employers should also correct the errors identified during the self-audit to potentially avoid monetary penalties. Finally, employers should consider implementing processes to avoid such errors going forward, including training human resources personnel how to accurately complete the forms and developing a tracking system so that employees with temporary work visas renew and present their visas before their work authorization ends.
Preparing for Administrative Site Visits
USCIS conducts unannounced administrative site visits to verify that employers are complying with the requirements of certain temporary visas, including H-1B visas for specialty occupation workers, L-1 visas for executives and managers who transfer from overseas locations, and H-2B non-agricultural workers who perform seasonal or temporary work. The visits could occur at any location identified in the visa petition, including the employer’s office, a client site, or a remote place of employment.
As part of the process, USCIS officers assigned to the Fraud Detection and National Security Directorate (“FDNS”) review the visa petition and supporting documents and interview the employer, employee, and third parties to verify the information provided in the visa petition matches the actual job. They also confirm the employee’s work location, physical workspace, hours, salary, and job duties, and may request the employer’s income tax returns, payroll information, and wage reports.
Following the visit, the immigration officer will submit a report to FDNS regarding any indication of possible fraud or non-compliance, which could result in revocation of the visa and referral to USCIS for a criminal investigation.
To prepare for a FDNS visit, employers should confirm that their H-1B and H-2B public access files are complete. Pursuant to the Labor Condition Application submitted as part of the H-1B and H-2B visa processes, employers are required to maintain a file available to the public that includes a signed copy of the certified Labor Condition Application, the rate of pay for the worker, the prevailing wage rate paid to the worker and its source, documentation that certain notice requirements were satisfied, and a summary of benefits offered to the workers demonstrating that they are the same as the benefits offered to U.S. workers.
Employers also should compile a confidential file for all temporary visa holders, including L-1 visas, containing copies of all visa petitions filed with USCIS so that they can be presented during the review.
Rick Hepp is a Partner in the Labor & Employment Group and Section Lead of the Firm’s Business Immigration Group. He can be reached at 216-831-0042, extension 604 or rhepp@meyersroman.com.
Disclaimer: Please note that this Legal Update and the information contained herein do not, and are not intended to, constitute legal advice or legal representation or create (and is not a solicitation to create) an attorney-client relationship; instead, all of the information, content, and materials contained in this publication are for general informational purposes only and may not reflect current legal developments. You should not act upon any such information, content or materials contained in this publication without first seeking qualified legal counsel.
