Increased Government Worksite Visits & AuditsAndrew M. Wilson Esq.
December 10, 2009 — 2,553 views
Increased Government Worksite Visits & Audits
The government is changing its enforcement tactics and placing a greater emphasis on employers in the fight against unauthorized employment. While worksite raids targeting employees are down, audits and worksite visits targeting employers are up.
- In July 2009, Immigration & Customs Enforcement (ICE) notified 652 businesses that their records will be audited.
- In November 2009, ICE notified 1,000 businesses that their records will be audited. ICE will continue to send out more NOIs in 2010 to employers in order to audit I-9 records.
One reason for this focus on employers is that immigration raids became increasingly controversial when children were separated from their parents. Another reason is that the current administration feels that targeting employers and executives is a more efficient way of combating unauthorized employment.
A memo released in April 2009 from the Department of Homeland Security (DHS) highlighted this recent change in worksite enforcement strategy from focusing on individuals to focusing on employers. The memo reads:
"Enforcement efforts focused on employers better target the root causes of illegal immigration. An effective strategy must do all of the following: 1) penalize employers who knowingly hire illegal workers: 2) deter employers who are tempted to hire illegal workers: and 3) encourage all employers to take advantage of well-crafted compliance tools."
Additional recent evidence of this shift in strategy can be seen in the precipitous increase in worksite visits by CIS' Office of Fraud Detection and National Security (FDNS). CIS recently started to conduct worksite visits of U.S. companies and other entities that employ foreign workers through H-1B and L-1 petitions. These worksite visits are carried out by CIS' Office of Fraud Detection and National Security (FDNS).
The Vermont Service Center has informed the American Immigration Lawyers Association (AILA) that it recently transferred approximately 20,000 cases to the FDNS as part of its H-1B investigation program. If the California Service Center transfers the same amount of cases, the result is an astounding 40,000 H-1B cases that will be reviewed by the FDNS.
The FDNS Worksite Visit
In most cases, a FDNS worksite visit will be unannounced and last approximately 30-60 minutes. The visit may occur at the employer's principle place of business or the specific worksite of the H-1B/L-1 employee.
What Does the FDNS Worksite Visit Entail?
The FDNS investigator will usually ask to meet with a company representative as well as the H-1B/L-1 foreign national employee. The investigator may request to see the employee's actual worksite and may take photographs for his/her record. The investigator may also request to speak with a co-worker or supervisor of the foreign national employee and/or request certain documents relating to the foreign national's H-1B or L-1 paperwork.
The FDNS investigator will normally seek information relating to the employer and the specific employment of the foreign national. Based on anecdotal evidence, inquiries from the FDNS investigators have focused on the following areas:
- Details about the about the employer, including ownership structure, tax returns, quarterly wage reports, and/or other company documentation, office locations in the U.S., number of H-1B, L-1 and other petitions and recent layoffs;
- Employer policies with respect to immigration matters, including sponsoring individuals for non-immigrant and immigrant petitions, prevailing wage surveys and any repayment agreements;
- Details about the specific petition under investigation including job title, duties, day-to-day functions, salary, work schedule, work locations and dates of employment; and
- Qualifications of the H-1B or L-1 employee, including education, work experience and prior immigration history.
Preparing for an FDNS Worksite Visit
In order to prepare for an unannounced FDNS worksite visit, employers may choose to undertake the following:
- (1) Designate a company representative who will meet and deal with the FDNS investigator. (Include a back-up individual in case the primary individual is unavailable for any reason) The company representative should accompany the FDNS investigator at all times and take detailed notes of questions asked and answered.
- (2) Make sure you have the name(s) and contact info for corporate and immigration counsel to contact in the event of an unannounced FDNS visit.
- (3) Conduct an internal review of the employment of all H-1B and L-1 employees to ensure that their job duties, worksites and salary are consistent with the respective immigration petition filed on their behalf. In addition, employers should review the Public Access File for each H-1B worker to ensure that it contains all of the necessary documents required by the Labor Condition Application (LCA) and Department of Labor (DOL) regulations.
- (4) Inform all company personnel such as receptionists, managers etc. of the possibility of an FDNS worksite visit and let them know what to expect and how to address the FDNS investigator.
- (5) Retain complete copies of all Form I-129 petitions and paperwork in separate files from the Public Access Files. This paperwork should be kept separate from any Public Access File.
- (6) Make sure that the foreign national employee and his/her manager are aware of the content of the I-129 petition and supporting documentation relating to the sponsored position, employee's work history etc.
Most FDNS worksite visits will be unannounced. Employers should therefore prepare procedures ahead of time.
FDNS Worksite Visit Guidelines
Company representative assigned to handle the site visit may choose to follow these general guidelines:
- (1) Meet with the FDNS investigator in a conference room rather than in your office;
- (2) Request the name, title and contact information for the FDNS investigator. Request a business card with a number to call and confirm the investigator's credentials before continuing with the visit;
- (3) Request to be present during any interviews of any employees;
- (4) Accompany the investigator during his/her review of your facility;
- (5) Do not guess or speculate for any answers. Do not be afraid to say "I don't know" if you are unsure of the correct answer or information;
- (6) Take detailed notes about all of the investigator's questions and where the investigator visited within your facility;
- (7) Make a note of any documents that the investigator reviewed;
- (8) Do not hand over any documents to the investigator for review that are private or confidential, or that was not specifically requested by the investigator;
The old adage that an ounce of prevention is worth a pound of cure is particularly true in this context. Employers need to prepare procedures ahead of time in order to properly be prepared for a random site visit. If an investigator makes an unannounced visit at one of your locations, you should contact counsel right away to review everything.
Andrew M. Wilson, Esq., is a partner with Serotte Reich Wilson, LLP, a U.S. immigration law firm with offices in Buffalo and Toronto.