The United States Citizenship and Immigration Services (“USCIS”) has been making unannounced site visits at companies that file H or L work visa petitions for their workers. For the most part, the visits have focused on a company’s H-1B workers. The United States Department of Labor (“DOL”) also has been carrying out its own investigations. For example, in a press release issued on August 17, 2010, the DOL announced that a computer consulting firm in Georgia had agreed to pay nearly $1 million in back wages and interest to 135 H-1B workers. According to the DOL, the company did not pay some of its H-1B workers any wages at the beginning of their employment, paid some workers on a part-time basis even though they were held out to be full-time employees, and paid some workers less than the required wages.
This article will review what these site visits are about and provide information about immigration-related investigations conducted by other government agencies.
Random H-1B Site Visits
Employers should expect a continuation of random, unannounced site visits conducted by the USCIS as part of its Administrative Site Visit Verification Program. The inspectors appear without any prior notice at the employer’s office to verify information included in the previously-approved petition. Although some site visits have focused on L-1 employees, the inspectors generally have concentrated on H-1B workers. To determine whether the employer is in compliance with the terms and conditions stated in the petition, the USCIS inspectors typically ask to speak to a company official and/or the foreign national and review documents, and, in some cases, for permission to photograph the premises. These site visits are not limited to cases in which the USCIS has reason to doubt the bona fides of the employment.
Employers must make certain that they are in compliance with all the requirements of the H-1B and L-1 programs and that the statements in their H-1B and L-1 petition papers accurately reflect the nature of the job and the qualifications of the foreign national to fill that job. They should also have a policy in place for dealing with site visits, should keep records in an easy-to-access location, and should make sure that the receptionist knows who to contact in the event of a site visit.
Labor Condition Application Inspections
The Labor Condition Application (“LCA”), which is filed with and must be certified by the DOL, is the first step in obtaining H-1B, H-1B1, and E-3 status for foreign workers. When an employer files an LCA, it is attesting, among other things, that it will be paying the worker the required wage and providing benefits and working conditions that are no less favorable than those provided to its U.S. workers, that it has posted a notice that it intends to hire the H-1B (or H-1B1 or E-3) worker, that all the statements made in the LCA are true, and that it will maintain all required documents in a public access file.
Since 1987, all U.S. employers have been required to complete the Form I-9 for all employees whose employment is to last more than three days. Although U.S. Immigration Customs and Enforcement (“ICE”), the DOL, and Office of Special Counsel are all authorized to inspect I-9s, ICE is the agency most likely to do so.
By regulation, ICE must provide at least three days written notice to the employer prior to the inspection, normally through a Notice of Inspection. No subpoena or warrant is required for an inspection, and a delay or refusal in presenting the Forms I-9 is a violation of the retention requirements set forth in the regulations. If a company does not comply with the request for presentation of the I-9s, the ICE officer may compel production by issuing a subpoena. Often, ICE will ask the employer to provide supporting documentation, which may include a copy of the payroll, a list of current employees, articles of incorporation, and business licenses.
ICE agents or auditors then conduct an inspection of the Forms I-9 for compliance. When technical or procedural violations are found, an employer is given ten business days to make corrections, but an employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be prosecuted criminally. Additionally, a federal contractor found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
Monetary penalties range up to $16,000 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith efforts to comply, seriousness of the violation, whether the violation involved unauthorized workers, and history of previous violations.
ICE has been in the news lately for its unannounced raids of employers believed to employ undocumented workers. For example, in July 2010, five Arkansas residents were sentenced for conspiring to harbor, transport, and employ illegal aliens, following an investigation by ICE and Homeland Security Investigations agents. The guilty pleas stemmed from an investigation into the employment and transportation of undocumented foreign nationals as a source of labor. The guilty pleas were based on findings that illegal aliens were knowingly hired by the defendants, transported to various worksites, and paid in cash. An ICE special agent explained: “ICE aggressively targets employers who egregiously violate immigration laws by knowingly employing an illegal alien workforce.” He warned that “[b]usinesses that use illegal alien workers to gain an economic advantage over their competition must understand that they will be held accountable for those unlawful practices.”
Employers must make certain that they are in compliance with all the requirements of the H-1B and L-1 programs and that the statements in their H-1B and L-1 petition papers accurately reflect the nature of the job and the qualifications of the foreign national to fill that job. They should also have a policy in place for dealing with site visits, should keep records in an easy-toaccess location, and should make sure that the receptionist knows who to contact in the event of a site visit.
ICE has been in the news lately for its unannounced raids of employers believed to employ undocumented workers.