As we explained in our Client Alerts of June and November 2009, the U.S. Citizenship and Immigration Services (USCIS) has been sending out inspectors to make unannounced site visits at companies that filed 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 U.S. Department of Labor (DOL) has also 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 fulltime employees, and paid some workers less than the required wages.
We thought this would be a good time not just to review what the site visits are about, but also to provide you with information about immigration-related investigations conducted by other government agencies.
A. 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, for the most part, the inspectors 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 ask to speak to a company official and/or the foreign national, and have asked to 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. Inspectors have been showing up at large, prestigious institutions, including museums, well-known multinational corporations, law firms, banks, and institutions of higher education. In a recent case involving a prestigious arts organization, the inspector asked to see an official of the organization, and asked about the number of its physical job sites, how many workers it employs, how many visa holders it employs, and similar questions. The inspector also asked specific questions about the H‑1B nonimmigrant’s job duties, start date, and salary. After speaking with the organization’s official, the inspector then asked to speak with the H‑1B worker, asking him the same questions about job duties, salary, start date, and educational background. He also asked to see the H‑1B worker’s identification and pay stubs. Note that generally speaking, the site inspectors do not welcome or even allow the appearance of immigration counsel at the inspections.
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 the 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.
The site visits of the Administrative Site Visit Verification Program must be distinguished from three other kinds of inspections: Labor Condition Application Inspections, I‑9 Audits, and Worksite Raids.
B. 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.
The Wage and Hour Division of the Employment Standards Administration of the DOL may initiate investigations of LCAs on the basis of one of four factors:
- It receives a complaint from an aggrieved person or organization;
- It receives specific credible information from a reliable source (other than a complainant) that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet those conditions, or has committed a substantial failure to meet the conditions that affects multiple employees;
- The Secretary of Labor has found, on a case-by-case basis, that an employer (within the last five years) has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA. In such cases, a random investigation may be conducted; or
- The Secretary of Labor has reasonable cause to believe that the employer is not in compliance. In such cases, the Secretary may certify that an investigation be conducted.
When violations are found, the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation, and may also impose other remedies, including the payment of back wages.
C. Department of State Investigations
The Department of State (DOS) Visa Office has confirmed that its Kentucky Consular Center (KCC) has started to verify information contained in USCIS-approved H and L nonimmigrant visa (NIV) petitions. As part of this information verification process, KCC will be telephoning first-time petitions to verify the information contained in the H or L petitions.
As we reported a while back, in 2007, the DOS instructed consular posts that they must verify the details of approved NIV petitions through the Petition Information Management Service (PIMS). The electronic PIMS record created by the KCC is the primary source of evidence used by consular officers to determine NIV petition approval. In addition to the information submitted by the petitioner on the I-129, many of the PIMS reports also contain information from DOS’ Fraud Prevention Unit (FPU). The FPU performs research on petitioners, and as part of a pilot project, the FPU, on a random basis, verifies factual aspects related to the beneficiaries and their proposed U.S. employment.
More recently, the DOS has decided to create a base petitioner record as part of the PIMS report for all first time petitioners. To create this base petitioner record, the KCC verifies petitioner information contained in the petition including, but not limited to, review of the company website, company contact information, and use of GoogleEarth to confirm the existence of the company office.
The KCC has also recently initiated a pilot program for verifying information related to the beneficiary and the proposed U.S. employment. These random checks will be conducted primarily through telephone calls with petitioning employers. The calls will be made without any prior notice and most likely will occur shortly after the approved petition is transferred to the KCC from the USCIS.
Once the review is complete, the findings of the review are available to consular officers, who are instructed to review the report, question the beneficiary regarding any discrepancies, and request that the KCC correct any information if a finding was in error. If the discrepancies were not in error, the consular officer will provide additional information to the KCC to update their report to include any additional incriminating evidence discovered during the course of the nonimmigrant visa interview.
Fifteen contractors have been authorized by the DOS to conduct these telephonic beneficiary reviews. The contractors have authorization to contact the petitioner and to speak to a company official. They will then ask a series of questions verifying certain information contained in the approved nonimmigrant visa petitions.
D. I‑9 Audits
Since 1987, all U.S. employers have been required to complete the form I‑9 for everyone hired after November 6, 1986 if the employment is to last more than three days. Although U.S. Immigration Customs and Enforcement (ICE), the U.S. Department of Labor (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. As soon as a Notice of Inspection is received, an employer should contact us. 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, list of current employees, Articles of Incorporation, and business licenses.
ICE agents or auditors then conduct an inspection of the Forms 1-9 for compliance. When technical or procedural violations are found, an employer is given 10 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, an employer 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 for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form 1-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
What Are Technical Violations?
Technical violations generally include small errors in the completion of the I‑9 form. They include failure of the person or entity to:
(A) In Section One of the Form I‑9:
(1) Ensure that an individual provides his or her maiden name, address or birth date in section 1 of the Form I‑9;
(2) Ensure that an individual provides his or her A number on the line next to the phrase in section 1 of the Form I‑9, “A Lawful Permanent Resident,” but only if the A number is provided in Sections 2 or 3 of the Form I‑9 (or on a legible copy of a document retained with the Form I‑9 and presented at the I‑9 inspection);
(3) Ensure that an individual provides his or her Alien number or Admission number on the line provided under the phrase in section 1 of the Form I‑9, “An alien authorized to work until,” but only if the Alien number or Admission number is provided in Sections 2 or 3 of the Form I‑9 (or on a legible copy of a document retained with the Form I‑9 and presented at the I‑9 inspection);
(4) Ensure that an individual dates section 1 of the Form I‑9;
(5) Ensure that an individual dates section 1 of the Form I‑9 at the time of hire if the time of hire occurred on or after September 30, 1996; or
(6) Ensure that a preparer and or translator provides his or her name, address, signature or date.
(B) In Section Two of the Form I‑9:
(1) Provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in section 2 of the Form I‑9 but only if a legible copy of the document(s) is retained with the Form I‑9 and presented at the I‑9 inspection;
(2) Provide the title, business name and business address in section 2 of the Form I‑9;
(3) Provide the date of hire in the attestation portion of action 2 of the Form I‑9;
(4) Date section 2 of the Form I‑9; or
(5) Date section 2 of the Form I‑9 within three business days of the date the individuals are hired or, if the individual is hired for three business days or less, at the time of hire if the date on which section 2 had to be completed occurred on or after September 30, 1996.
(C) In Section Three of the Form I‑9:
(1) Provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in section 3 of the Form I‑9 but only if a legible copy of the document(s) is retained with the Form I‑9 and presented at the I‑9 inspection; or
(2) Provide the date of rehire in section 3 of the Form I‑9.
What Are Substantive Violations?
Substantive violations include the following:
Failure of the person or entity to:
(A) Prepare or present the Form I‑9;
(B) In Section One of the Form I‑9:
(1) Ensure that the individual provides his or her printed name in section 1 of the Form I‑9;
(2) Ensure that the individual checks a box in section 1 of the Form I‑9 attesting to whether he or she is a citizen or national of the United States, a Lawful Permanent Resident or an alien authorized to work until a specified date;
(3) Ensure that the individual provides his or her A number on the line next to the phrase in section 1 of the Form I‑9, “A Lawful Permanent Resident,” but only if the A number is not provided in Sections 2 or 3 of the Form I‑9 (or on a legible copy of a document retained with the Form I‑9 and presented at the I‑9 inspection);
(4) Ensure that the individual provides the Alien number or Admission number on the line provided under the phrase in section 1 of the Form I‑9, “An alien authorized to work until,” but only if the Alien number or Admission number is not provided in Sections 2 or 3 of the Form I‑9 (or on a legible copy of a document retained with the Form I‑9 and presented at the I‑9 inspection);
(5) Ensure that the individual signs the attestation in section 1 of the Form I‑9; or
(6) Ensure that the individual dates section 1 of the Form I‑9 at the time of hire if the date of hire occurred before September 30, 1996;
(C) In Section Two of the Form I‑9:
(1) Review and verify a proper List A document or proper List B and List C documents in section 2 of the Form I‑9;
(2) Provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in section 2 of the Form I‑9, unless a legible copy of the document(s) is retained with the Form I‑9 and presented at the I‑9 inspection;
(3) Sign the attestation in section 2 of the Form I‑9; or
(4) Date section 2 of the Form I‑9 within three business days of the date the individual is hired or, if the individual is hired for three business days or less, at the time of hire if the date that section 2 was to be completed occurred before September 30, 1996;
(D) In Section Three of the Form I‑9:
(1) Review and verify a proper List A document or proper List B and List C documents in section 3 of the Form I‑9;
(2) Provide the document title, identification number(s) and/or expiration date(s) of a proper List A document or proper List B and List C documents in section 3 of the Form I‑9, unless a legible copy of the document(s) is retained with the Form I‑9 and presented at the I‑9 inspection;
(3) Sign section 3 of the Form I‑9;
(4) Date section 3 of the Form I‑9; or
(5) Date section 3 of the Form I‑9 not later than the date that the work authorization of the individual hired or recruited or referred for a fee expires.
A person or entity that has committed one or more of the above failures has violated the verification requirements of section 274A(b) of the Act. The notification and correction period requirements of section 274A(b)(6)(B) of the Act do not apply to these failures.
E. Worksite Raids
ICE has been in the news lately for its unannounced raids of employers believed to employ undocumented workers. For example, in July, 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 for a poultry contracting and a loading company, businesses owned or controlled by the defendants. The guilty pleas were based on findings that illegal aliens were knowingly hired by the defendants to work on chicken catching crews, who were transported to various worksites, and were 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.”
In May, the president and office manager of two Illinois staffing companies that supplied temporary workers to suburban warehouses were charged with unlawfully hiring dozens of undocumented workers to form their labor pool. The charges resulted from a worksite enforcement investigation conducted by ICE.
In addition to hiring illegal workers, the defendants allegedly paid their workers’ wages in cash and failed to deduct payroll taxes or other withholdings, according to a single-count criminal information filed in the Northern District of Illinois.
“Employers in all industries and locations must comply with the nation’s immigration laws if we are to have an effective immigration enforcement strategy in this country,” said a special agent in charge of the ICE Office of Investigation in Chicago. “ICE is committed to ensuring that employers are held accountable for maintaining a legal workforce. The goal of our enforcement effort is twofold — reduce the demand for illegal employment, and protect job opportunities for the nation’s lawful workforce.”
What To Do?
If your company is the subject of any site visits, audits, inspections, or investigations, you should contact us immediately. In some instances, we will be able to represent you during the investigation, but even when we are barred from doing so, we may be able to help monitor the questions and assist with the answers if any issues arise. It is also important that you take extensive notes of any investigation, making certain that you include the time and date of the call or visit, the name, agency affiliation, and telephone number of the person contacting you, the case number, if relevant, and a summary of all the questions asked, and your answers. That way, if a question later arises about the information you provided, you will have some backup that we can use to supplement, clarify, or correct the record of the interview.