Immigration Workplace Enforcement: How Employers Can Prepare for Site Visits

It is hard to avoid the news in today’s regulatory climate: Immigration-related government agency site visits are becoming more commonplace and, moreover, they are becoming more adversarial in nature. 

Let’s take a look at how these site visits arise and best practices for training your staff to handle them.

MAIN TYPES OF VISITS

Fraud Detection and National Security Directorate (FDNS)

This is the most common type of immigration site visit and also the “friendliest”. FDNS sits within US Citizenship and Immigration Services (USCIS), which is the benefit-granting sub-agency of the Department of Homeland Security. All employers who file an I-129 Nonimmigrant Petition with USCIS to sponsor an H-1B, L-1A or L-1B worker will pay a $500 Anti-Fraud Fee, at least once per worker. This Fee goes directly to the FDNS, which is, in part, responsible for following up on a certain percentage of I-129 filings to validate that the information provided by the Petitioner is accurate.

FDNS site visits tend to be very targeted - based on one specific petition, employer, and worker. They may be coming to investigate your organization’s I-129 petition or an I-129 petition filed by another employer whose staff is operating out of your location (the “contractors”). 

Participation in these visits is actually voluntary - FDNS officers will not carry a warrant. They are requesting the employer’s cooperation in closing their case. It is not meant to be adversarial as all employers who file the I-129 petition to sponsor a worker and pay the Anti-Fraud Fee are assumed to be willing participants in this program, working together to combat immigration fraud which is seen as bad for everyone.

The primary risks posed during these site visits are (1) a lack of staff education and training that results in confusion/information gaps, (2) third-party employers who may have committed fraud that are operating at your worksites, and (3) other violations visible to the naked eye that are uncovered during the visit.

Immigration and Customs Enforcement (ICE)

ICE is the enforcement arm of the Department of Homeland Security and in the employment context is primarily known for conducting I-9 Audits (targeting employers) and worksite raids to identify and arrest undocumented aliens (targeting employees). An I-9 Audit, which can feel more administrative in nature, is typically initiated via a Notice of Inspection (NOI) to produce a specific set of I-9 records within 3 business days and an employer is statutorily obligated to comply with the audit. However, a worksite visit can also be leveraged to spot-check I-9 authorization documents in real time.

If ICE discovers an employer has knowingly hired an undocumented alien without work authorization, not only can that worker be arrested but the employer can be fined up to $5,579 for first offenses and up to $27,894 per worker for repeat offenses. ICE can also bring personal actions against managers and business owners, who can face up to 10 years in prison and up to $250,000 in fines for harboring undocumented workers, and can be individually prosecuted for charges such as mail and wire fraud, document fraud, and tax evasion. Further, employers found to have hired a worker without authorization can be debarred from federal contracts even where the violation was made unknowingly.

Hospitality (primarily restaurants and hotels), construction, manufacturing, industrial and warehousing facilities are statistically more likely to be targets of ICE audits and raids than office buildings. That being said, especially in the current climate, all employers have to be prepared for an I-9 Audit, whether it be comprehensive or a spot-check.

Homeland Security Investigations (HSI)

HSI is the unit of ICE that investigates crimes involving the illegal movement of people, goods, money, contraband, weapons and sensitive technology into, out of and through the United States. Often partnered with other federal criminal investigatory agencies such as the FBI, DEA or ATF, HSI’s investigations are not random or fleeting - they develop complex criminal investigations targeted at a specific individual, group or business. 

HSI also executes ICE I-9 Audits. It is HSI that will issue the NOI, inspect the responsive documents, determine violations, and issue the Notification of Inspection Results (NOIR) and, if applicable, the Notice of Intent to Fine (NIF).

As with an ICE worksite raid, any HSI officer visiting a worksite should be in possession of a signed warrant that specifies the scope of their authority to execute a search, seizure or arrest on private property. HSI may contact an employer who is not the target of an investigation in order to build a case against another party - any cooperation with HSI should be made with the advice of criminal legal counsel.

HOW TO PREPARE FOR WORKSITE VISITS & AUDITS

Historically, employers either under-prepared for immigration-related worksite visits or focused solely on an administrative FDNS visit when training their personnel. In today’s climate, it is important for all employers to take seriously the education and supervision of their staff located at the entrances of any worksite and to provide them with the tools to not only seamlessly handle an FDNS visit, but also a visit that is more adversarial in nature.

• Understand your public vs. private areas – this is important to denote since private spaces require a warrant and public areas do not

• Communicate to your staff what actions would require a warrant and train them to look for the following:

• Warrant must be signed and dated by a judge

• Warrant will include a specific timeframe and area for a search

• Warrant will include a list of items to be searched for (eg payroll records, employee IDs, Forms I-9, SSA correspondence, etc.)

• All property entrances should either be locked or have security or other staff members stationed nearby

• Any staff stationed at the entrances should have access to a “site visit protocol” document and “contact list”

• There should be different protocols for FDNS visits which are generally perfunctory checks vs. other visits which constitute a legal search or seizure. For FDNS visits, the point of contact could be an HR or other company representative, whereas for all other visits you will want your executive leadership and legal counsel to be made aware immediately.

• The “site visit protocol” document should outline the difference in responses based on if the search target is an employee vs. a contractor. It is important that any staff member who would greet a government agent be able to quickly verify the name, location and employment status (employee vs. contractor) of any individuals named in the search.

• A staff member should accompany any government agents as they move through the building and speak to your employees

• You are permitted to take notes or videotape the officers, but for FDNS visits, it is best to appear friendly and open

• In all cases, be as cooperative as possible while protecting your legal rights as an employer and the legal rights of your employees

• Train your staff so they know your employees’ rights. While your personnel should remain focused on protecting the integrity of the organization and the safety of each worksite, they should not inadvertently or intentionally infringe the rights of any individual. Your employees have the right to:

• Remain silent

• Request an attorney

• Decline to sign any documents

• Refuse to answer questions about their immigration status

• Ask if they are free to leave

• Request a copy of any warrant

• Record details such as officer names, agencies and badge numbers or physical descriptions of the agents

• Know where your I-9 records (typically going back 5 years) are kept and be prepared to turn them over to ICE within 3 business days of any Audit notice

• Conduct routine internal audits to identify and resolve issues proactively

• Understand who is an employee of your US business vs. another entity – I-9 is required for workers you hire in the US so if someone is present onsite on an E-2 or L-1 visa who is remaining on non-US payroll and is not considered a US employee, you may need to clarify if/why there is no I-9 on file for them

• Make sure your US payroll records and payroll tax filings are consistent with your I-9 records (meaning everyone you consider to be a US employee should have an I-9 record and proper tax withholdings)

• Purge records you no longer need and timely notify the government of any change in employment status (send in timely Requests to Withdraw pending or approved I-129 petitions that are no longer needed; withdraw Labor Condition Applications (LCAs) that are no longer being relied upon)

• I-9 records must be maintained for 3 years from the date of hire or for 1 year from the date of separation, whichever is later.

• Public Access Files (PAFs) for LCAs must be maintained for 1 year from the date of expiration or withdrawal, which is earlier.

If you have any questions about training materials, protocol development, or communication best practices relating to preparing for immigration-related worksite visits, please feel free to reach out to me.