The Immigration Reform and Control Act (“ICRA”) requires that all U.S. employers verify the identity and eligibility of all workers, whether they are U.S. citizens or not, by completing the Employment Eligibility Verification Form I-9. An employer must retain these forms for all employees either for three years after the date of hire or for one year after employment is terminated, whichever is later. Fines for failing to verify work authorization status or properly complete the requisite form (Form I-9) may range from several hundred to several thousand dollars per violation.
At anytime, the Department of Homeland Security, Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice may request all I-9’s on file for any given U.S. employer. During review, if there are found to be errors in the I-9 documentation or missing forms, or if it is discovered that an employer “knowingly” continued to employ an unauthorized worker, the employer may be subject to serious penalties.
In recent years, the Department of Homeland Security has increasingly targeted the workplace as a way to keep an eye on foreign nationals. The civil fines for paperwork violations can be hefty, with a single Form I-9 error costing as much as $1,100 per employee. The number of criminal prosecutions of employers found to be in violation of I-9 employment eligibility verification has also risen steadily over the past few years. With stricter enforcement efforts, it is important that you consult an immigration attorney who can provide your business with I-9 compliance assistance.
H-1B Audits: A study recently conducted by the U.S. Citizenship and Immigration Service (USCIS) found that as many as one in five H-1B applications were affected by either fraud or “technical violations,” of the H-1B program. This is likely the impetus behind USCIS’ increased anti-fraud enforcement efforts.
Whatever the reason behind such stepped-up efforts, there is no doubt that the USCIS has begun making more and more “surprise visits” to the U.S. worksites of companies that sponsor H-1B visa holders.
The Office of Fraud Detection and National Security (FDNS), a division housed within USCIS National Security and Records Verification Directorate, was created in 2004 to enhance the quality, integrity and security of the U.S. legal immigration system. According to the USCIS, FDNS’ primary mission is to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts aimed at ensuring that benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit to the law enforcement and intelligence communities.
USCIS regularly conducts random, unannounced on-site inspections as part of the expansion of its Administrative Site Visit and Verification Program. This program involves the hiring of private contractors to send “investigators” out to conduct site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition. Such investigators come with a checklist of questions designed to confirm the identity of the employer who petitioned for the H-1B visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa.
The objective of the unannounced site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the nonpayment of a prevailing wage to the H-1B beneficiary.
Thus, it is important that all H-1B petitioners (whether they are a small, privately held IT company or a large, publicly traded Fortune 500 company) make sure that their immigration compliance program is properly established (i.e., their H-1B Public Access Files (PAF) are properly maintained) and compliant with the applicable regulations.
The United States Department of Labor also has the authority to investigate H-1B employers for alleged failure to meet the conditions outlined in the Labor Conditions Application (“LCA”) for their employees’ H-1B visas. The Department of Labor can also initiate an investigation against an employer who has allegedly engaged in conduct prohibited by the LCA process.
Aside from the ability to produce evidence of payment of the proper wage, H-1B employers must maintain the original LCA (with dates of posting) and a wage memorandum outlining how the wage was determined and a copy of the relevant prevailing wage data. Moreover, evidence of timely notification to USCIS of the termination (whether voluntary or not) of H-1B workers must be regularly available. In addition, the PAF should also include a Summary of Benefits offered to US workers in the same classification as H-1B applicants. Finally, with respect to each H-1B worker who was involuntarily terminated prior to his/her authorized period of stay, there should be evidence of an offer of return transportation to the H-1B worker’s last country of residence.
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