Immigration enforcement activities have continued apace in spite of the unprecedented changes wrought on U.S. employers due to the coronavirus pandemic. Any U.S. employer, even those without foreign nationals on staff, may be subject to immigration‑related compliance audits. Recent enforcement activities have included I‑9 audits, Department of Labor (DOL) investigations, citizenship status discrimination investigations, I-9 document abuse investigations and Department of Justice (DOJ) civil suits alleging improper favor of temporary foreign workers over U.S. workers. Less punitive, but more common, are random and unannounced site visits by immigration officers at worksites employing H‑1B temporary workers; L‑1 multinational managers, executives and specialized-knowledge workers; and F-1 foreign student on STEM Optional Practical Training (OPT).
The current administration’s focus on legal immigration and its emphasis on "Buy American, Hire American" policies has led to a significant increase in site visits. Site visits can occur prior to the approval of an H or L visa petition or any time after it has been approved. Site visits in the STEM OPT program can occur any time during the two-year duration of the F-1 student’s work authorization. Site visits are conducted by immigration officers or contractors, often retired Department of Homeland Security or law enforcement personnel. The purpose of a site visit is to provide the government with the opportunity to verify information that was provided by the employer in support of the immigration application.
H-visa worker investigations involve a review of the job location, office space, paystubs, salary information, schedule of employment and other factors to confirm that the employment is bona fide and is actually occurring as it was described on the employer’s H-visa petition. There is often a follow-up request by the investigator for additional documentation. Failure of the employee to meet the basic H-visa requirements can lead to a revocation of the previously approved application.
The considerations for L‑1 site visits are similar to the H-visa; however, there is less focus on wages and more on the job description and duties of the foreign national worker. STEM OPT site visits focus on confirmation of the elements of the training plan that was submitted by the employer and the student prior to the approval of the work authorization document. Training plans require regular supervision, periodic evaluations and meeting of milestones that should be maintained and documented throughout the student’s employment.
There are several areas where attorneys can assist employers in preparing for site visits. Attorneys should assist employers in drafting a written plan and procedure as to what an employer should do when an immigration officer visits a worksite unannounced. A comprehensive plan will ensure that the employer’s first response to the immigration audit is helpful and remains within the employer’s control. The plan should include training for front desk and human resources personnel, as well as ensure the immigration officer is never allowed to tour the premises or talk with employees unaccompanied. Compliance with immigration record-keeping requirements is also imperative, and having readily available, complete records will assist employers in responding to documentation requests during site visits.
In recent months, immigration officers have been reaching out by email to conduct site visits and requesting interviews with foreign national workers. Through email and telephone, as well as by providing significant documentation, it is possible to satisfy the immigration officer’s requirements without an actual visit to the worksite.
Immigration officers are also willing to conduct interviews by telephone of employees and their supervisors; however, preparation of the interviewees should be conducted to ensure that they do not inadvertently provide too much or unhelpful information to the government investigator.
Employers of H‑visa workers, including H‑2A agricultural workers, H‑2B seasonal workers and H‑1B specialty occupation workers, are subject to DOL audits regarding the wages and working conditions of these workers as well as their American counterparts. While DOL audits are rare, they are usually precipitated by a DOL complaint filed by an American worker or an H‑visa holder. These audits often will lead to onsite investigations, significant fines and back pay awards. Employers undertaking sponsorship of an H‑visa worker must be fully apprised of the required wages and working condition requirements before agreeing to the sponsorship.
There has been a surge in I‑9 audits under the current administration, from 1,370 in 2017 to 6,456 in 2019. There also has been a correlative increase in the number of arrests resulting from I‑9 audits, including undocumented workers or those using false identity documents. Based upon the administration’s budget requests, continued increases in I‑9 audits are likely.
I‑9 audits in the region have been continuing throughout the coronavirus pandemic. Local Immigration and Customs Enforcement officers have been accommodating to employers who have had difficulty in gathering required documentation due to the remote work environment and nonavailability of many aspects of their businesses. Immigration officers have also been accommodating in allowing extensions of timelines to respond to I‑9 audits, as well as subsequent requests for corrections and employer investigations of employment documents that the agency finds to be suspect. Requests for extensions should be reasonable. Normally an additional 30 days is approved, and often additional extensions will be granted as long as the employer or counsel keep the government officials apprised of progress in responding to the audit requests.
Upon receipt of an I-9 audit request, employers, under the direction and advice of counsel, should conduct an internal audit to review and correct existing I‑9 forms as well as replace missing I-9 forms with newly completed ones. The primary consideration for this endeavor is that employers must not backdate new I-9s or corrections. Once the I-9 forms are delivered to the government, they will be reviewed for legal work authorization status of each employee, discrepancies in identity documents and errors on the I-9 forms. Immigration enforcement officers are most interested in employers’ good faith efforts to comply, even if those efforts contain technical or substantive errors.
Employers are not expected to be document fraud experts; however, when the government uncovers an undocumented worker through the I-9 audit process, it will issue a notice of suspect documents. Employers must take immediate and decisive action to investigate the immigration status of those workers and terminate them if they are unable to provide proper documentation to demonstrate legal work authorization. Even employers who are found to have undocumented workers on staff will not always be fined by immigration officials, especially if they have shown good faith in completing the I‑9 forms and in reviewing documentation provided by the employees.
There has also been an uptick in immigration‑related employment discrimination investigations by the DOJ. These investigations are precipitated most often by a worker complaint or by the findings of an I‑9 or DOL audit. Triggering events could include discriminatory language in employment advertising, refusal to hire persons based upon their citizenship status or national origin, or specific documentary requirements during the I‑9 process.
Investigations by the DOJ are thorough and onerous. They are normally settled, but only after extensive disruption to the employer’s business and the extraction of significant fines, penalties and detailed, invasive settlement terms. They include repeated and consistent training over a multiyear period; compliance policy reviews and rewrites; DOJ monitoring; and multiyear I-9 audits by the Department of Homeland Security. Employers are also subject to back pay awards and will often be required to set up a fund so that any workers who were rejected from employment for illegal reasons will have access to back pay awards as they come forward.
Employers and their attorneys must stay vigilant. Immigration compliance is complex, tedious and ever changing. Planning ahead with robust policies, regular training and strong record keeping is key.
Valentine A. Brown is a partner at Duane Morris in the employment, labor, benefits and immigration practice group. She represents corporations and individuals in all types of immigration laws and proceedings.
Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.