Mintz Levin has previously reported on the trend of increasing worksite compliance initiatives by the government, and this trend shows no sign of slowing.

U.S. Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations, issuing notices of inspection to 1,000 employers across the United States. The agency has indicated that the emphasis is on “businesses related to critical infrastructure and key resources,” which includes sectors such as banking and finance, commercial nuclear reactors, dams, drinking water and water treatment systems, government facilities, information technology, telecommunications and transportation systems, among others.

These inspections seek to ensure that companies hire only individuals authorized to work in the United States, and they involve inspecting I-9 forms and the documents provided by employees to verify identity and employment authorization.

An employer typically has three days from receipt of the notice of inspection to produce the I-9 forms for review, and additional supporting documentation may be requested as well. If violations are found, ICE can impose a number of different penalties depending on the severity of the violation. These can range from fines to debarment from bidding for federal contracts to criminal charges in the most serious cases.

What can you do to prepare?

While there may be no way to prevent a notice of inspection from being issued, good I-9 policies and practices are essential to avoiding problems. It is critical that employers routinely conduct internal I-9 self-audits and engage in regular and systematic training of personnel with responsibility for I-9s to ensure that all I-9 forms and documentation are in order.

Mintz Levin is available to conduct I-9 audits and trainings at your offices and through webinars, which can reach all employees responsible for I-9 compliance throughout a multi-office organization.

In addition to these I-9 inspections by ICE, employers of foreign nationals are also subject to site visits by the Department of Homeland Security (DHS). In these site visits, DHS wants to confirm that the employer is a bona fide organization that knowingly filed the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition. Click here for additional information pertaining to DHS site visits.

Since DHS site visits and ICE notices of inspection can come without warning, and since noncompliant employers are subject to serious fines and penalties, it is critical that your immigration files are in order and that you are prepared ahead of time:

  • Ensure that your company has a designated point-of-contact in the event of a DHS visit or ICE investigation, and a back-up person to assume this function if the designated person is out of the office on the day of the visit, and ensure that the staff knows who the contact persons are.
  • Ensure that your immigration files are in good order, including (1) immigration documentation files, (2) H-1B Public Inspection Files, and (3) I-9 forms and supporting documents. These sets of files should be reviewed and updated annually.
  • Contact your Mintz Levin attorney immediately if you receive any communication about a visit or inspection from ICE or DHS.
  • Ensure that you check with your Mintz Levin immigration attorney if you anticipate making any changes to a sponsored foreign national’s position, job location, or wages. In some cases, amended visa petitions must be filed or labor condition application notices posted to keep your company in compliance.