As part of its stated goal to protect the U.S. worker, President Trump’s administration will be increasing worksite enforcement activities. This likely means that there will be more site visits of companies utilizing visa programs and more Form I-9 audits of all employers.
Site visits are handled by the Fraud Detection and National Security (FDNS) division of U.S. Citizenship and Immigration Services (USCIS). FDNS officers visit worksites unannounced and speak with employers and visa holders about the conditions of employment. If the FDNS officers discover information that is inconsistent with the visa petition being reviewed, the visit may result in USCIS issuing a Notice of Intent to Revoke the visa petition and the visa holder may need to leave the United States.
Form I-9 audits are handled by U.S. Immigration and Customs Enforcement (ICE). ICE officers initiate Form I-9 audits by delivering Notices of Inspection (NOIs) to worksites. These NOIs instruct companies that they have three (3) days to present the Form I-9s of both active and terminated employees to ICE. As part of the audit, ICE forensic auditors, as well as field agents, inspect the companies’ hiring records to determine whether or not they are complying with the Immigration Reform and Control Act of 1986 (IRCA), as well as other immigration-related laws. Currently, ICE has 1,000 auditors assigned to Form I-9 audits. President Trump’s administration reportedly intends to hire 20,000 additional ICE agents, some of whom will likely be tasked with Form I-9 inspections.
Under IRCA, employers are required to verify the identity and employment eligibility of each employee hired after Nov. 6, 1986. This verification is done by completing and retaining a Form I-9 for each individual hired. Employers must review documents for each new hire and ensure the documents appear reasonably genuine prior to accepting them.
President Trump’s administration has indicated that it intends to go after companies it views as harmful to U.S. workers: employers that hire “too many” foreign workers and employers that hire unauthorized workers. It is clear the government considers site visits and Form I-9 inspections to be important tools in its effort to support this focus. This renewed zeal to utilize administrative tools, including civil monetary penalties where Form I-9 inspections are concerned, coincides with the government’s recent inflation adjustment in fines for Form I-9 violations. As of January 2017, paperwork violation fines range from $220 to $2191 for each violation and fines for substantive violations range from $452 to $21,916. Multiple violations that rise to the level of a “pattern or practice” can trigger criminal penalties and Attorney General Jeff Sessions’ Justice Department will likely not shy away from prosecuting such cases.
During President Obama’s administration, ICE made clear that it prioritized its enforcement efforts based on national security concerns, such as critical infrastructure and government contractors. Now, ICE will likely be targeting industries that are heavy visa users, such as high-tech and staffing companies, as well as industries viewed as magnets for illegal immigration, such as hospitality, landscaping, construction, and manufacturing.
Employers should prepare now for this higher risk of site visits and Form I-9 inspections by consulting with counsel to develop an internal protocol for dealing with unannounced visits by USCIS and ICE inspectors. For example, receptionists, who are often the first point-of-contact at a place of business, should be instructed to immediately contact the appropriate individual(s) at the company in the event an FDNS or ICE officer visits the company. Any information provided to an FDNS or ICE officer could be used against the company later in the petition review or audit process, so it is important that only management, HR personnel, or designated employees should communicate with government officials. Additionally, if your receptionist is authorized to accept and receive a NOI, they should be made aware that they must notify management immediately because the NOI must be responded to within three (3) days, as provided by law.
Having a plan in place not only helps everyone respond appropriately in this type of situation, but also helps alleviate the panic that occurs when a government agent shows up at your place of business.
Our next GT Alert will address what to do when you receive an NOI.