December 2, 2009Client Alert

Immigration Investigations on the Rise

The Department of Homeland Security (“DHS”) continues to increase its worksite immigration enforcement efforts. Late last month, it notified 1,000 employers that it will audit their Form I-9 records. These audits are in addition to the 654 audits that took place this summer. DHS has also begun on-site visits to H-1B employers to determine compliance with H-1B program rules.

I-9 Audits

U.S. employers are required to complete and maintain I-9 records for all employees, including U.S. citizens. Employers must attest on the Form I-9 that it has examined an employee's work authorization and identity documentation, verifying his or her ability to work in the United States. Employers must also re-verify work authorization documents if they expire.

Failure to properly complete or retain Form I-9 records can result in substantial fines. Of the 654 employers audited earlier this year, investigators issued notices for fines totaling more than $2.3 million; penalties are still being considered in another 267 cases.

The 1,000 employers recently targeted are each associated with critical infrastructure, which can include utilities, transportation or communications companies, or companies with public safety or national security connections. In light of the dramatic increase in immigration worksite investigations, we recommend that all employers take the following steps to ensure they are in compliance with applicable rules:

  • Perform an annual internal audit of I-9 records and audit of I-9 records by a 3rd party every other year;

  • Create and maintain an up-to-date and uniform policy on employment verification procedures and social security number mismatch notice response;

  • Train human resources and hiring personnel on employment authorization, immigration and discrimination rules; and

  • Maintain “reminder” system to alert employees of upcoming work authorization expiration dates to ensure proper reverification of I-9 records.

H-1B Worksite Visits

In addition to the increase in I-9 audits, DHS has begun on-site visits to H-1B employers. DHS has already conducted these inspections at many Wisconsin companies and is expected to continue these on-site visits in the upcoming months. During the visits, DHS officials usually ask to meet with human resources personnel and the H-1B employees to determine whether the H-1B employees receive the wages stated in their H-1B visa petitions and labor condition applications. The officials also examine whether the H-1B employees are performing the duties outlined in their H-1B petitions.

In the event that discrepancies are discovered, the visiting official can make a finding of fraud and refer the case for further investigation. Because the consequences for immigration fraud are severe, employers should be sure they are in compliance with all aspects of the H-1B program. We recommend that H-1B employers check that the work locations, compensation amounts and job duties of each H-1B worker matches the information contained in the worker’s H-1B filings. Additionally, H-1B employers should ensure that their H-1B Public Access Files are complete.

If you have questions regarding Form I-9 or H-1B compliance, please contact one of the authors of this alert or your Michael Best attorney.

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