Workforce Compliance

To demonstrate to the public that it is enforcing U.S. immigration laws (including the Immigration Reform & Control Act (“IRCA”)), U.S. Immigration & Customs Enforcement (“ICE”) is stepping up its efforts by conducting an increasing number of worksite enforcement actions. Employers which are not I-9 compliant as well as those which employ undocumented workers, are being charged under federal civil and criminal statutes for such offenses as harboring, shielding employees and suborning perjury. Employers (including their corporate officers, owners, executives and managers) are facing multi-million dollar fines and imprisonment. In addition to ICE’s efforts and in the absence of federal comprehensive immigration reform, state legislatures and local governments are tackling issues on their own by passing a variety of laws focused on employment eligibility verification requirements on both the employer and employee level. Several enactments also focus on employment eligibility verification concerning unemployment benefits and workers compensation.

Because of this attention being given to worksite compliance, employers need to:

  1. Be prepared to handle an ICE worksite enforcement action and understand its dynamics;
  2. Understand the “Safe Harbor” No-Match Regulation (currently halted by an injunction) and what it means to have constructive knowledge of unauthorized employment;
  3. Conduct regular internal I-9 audits and training and be able to spot issues and fraudulent documents; and
  4. Have a written immigration company compliance program and consider the pros and cons of registering for E-verify and ways to minimize subcontractor liability.

In addition to I-9 audits, the Department of Homeland Security also conducts other types of site visits related to worksite compliance.  Ronald Atkinson, Chief of Staff of USCIS’ Fraud Detection and National Security (FDNS) office, states that there are three (3) types of site visits:

  1. Risk Assessment Program Fraud Study. This study is applicable to any type of benefit program, including family and employment-based and is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.
  2. Targeted Site Visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.
  3. Administrative Site Visits. These visits relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked the same questions, primarily reaching the issues of whether there is really an employer at the location listed on the petition, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are conducted on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.

Employers should also review the following pages:

Our law firm regularly conducts I-9 audits and training as well as client workshops and seminars on the topics described above. Please contact one of our attorneys for more information.