Employer Best Practices for Avoiding Immigration Violations
Enforcement actions or audits can be carried out by various arms of the government, including U.S. Citizenship & Immigration Services (USCIS), Immigration & Customs Enforcement (ICE), and the Department of Labor (DOL). Inquiries by one government agency will often result in inquiries or actions by another government agency. The most common types of immigration-related actions are I-9 audits, H-1B Public Access File audits, and worksite raids. In some cases, the government assesses criminal penalties based on the employment of illegal workers, and in other cases the government assesses financial penalties based on paperwork and/or payroll violations, regardless of the legality of the workforce.
Employer Best Practices
- Establish (create or update) a self-serving, written internal policy document to illustrate your company’s good faith attempts to comply with all relevant immigration laws.
- Make certain that all relevant employees are aware of fines and penalties to which the company may be exposed for failing to follow relevant laws and regulations.
- Avoid hiring of foreign nationals (“FN”) without proper authorization to work in the United States.
- Establish and provide regular training programs and compliance processes to HR, legal, and management professionals.
- Maintain detailed employee personnel files and include up-to-date copies of the FN’s immigration status in the U.S. with current job title, work location, and salary information.
The Immigration Reform and Control Act (“IRCA”) requires U.S. employers to verify the identity and employment eligibility of all new employees (both citizens and noncitizens) hired after 1986. Form I-9 is a one page form employees must complete to verify their identity and prove that they are allowed to work in the U.S. Employers must keep each I-9 on file for at least three years from the date of hire or for one year after employment ends (whichever date comes later).
Employer Best Practices
- FN should complete the I-9 Form and provide supporting documentation within 3 days of actual start date.
- Centralize the I-9 recordkeeping process and conduct a preventative internal audit of I-9 files to address any outstanding violations requiring remediation.
- Establish uniform company policies regarding I-9 processes and ensure that commencement of employment verification is not discriminatory.
- Establish a re-verification process to ensure I-9s are checked and updated in a timely matter, especially for workers who are not permanently authorized to work in the U.S.
H-1B & E-3 Employees and Labor Condition Act (“LCA”) Liabilities
A “Public Access File” (“PAF”) must be maintained for each person for whom an LCA is certified. This generally impacts employees in H-1B or E-3 nonimmigrant status. Employers must set up a PAF within one working day after the date the LCA is filed with DOL. Ideally, the file should be kept separate from personnel files, and it must contain all documentation specified by the government (see 20 C.F.R. 655.760).
Employer Best Practices
- Establish uniform internal policies regarding PAF creation, maintenance and access, and conduct regular audits of files.
- Retain the PAF for one year beyond the last date on which any H-1B/E-3 nonimmigrant is employed under the LCA (or for one year from the date the LCA expired or was withdrawn in the case of non-employment).
- Ensure that the contents of the PAF include ALL required documentation.
- Update the H-1B/E-3 application if there are material changes to the terms of employment (job duties, wages, work locations, etc.)
How Do I Handle a Government Visit?
Do not panic. Cooperate and be polite to the investigators. Follow your established internal processes, and gather information to relay to your immigration services provider immediately.
- Did the visiting government agency identify themselves (USCIS, ICE, DOL, FDNS)?
- What or who did the agent inquire about (specific FN or filings)?
- Did the agent request specific access to particular records (I-9 files, LCAs/PAFs, company financials, copies of prior filed petitions)?
- Who did the agent ask to speak with (FN, HR, FN’s Manager or Supervisor)?
Unless the investigators have a warrant, you are not obligated to immediately turn over records or allow them into non-public areas of your premises. However, it is strongly advised that all records are updated, accurate, organized, and in a format that allows you to easily provide them to your lawyer and the government on short notice.
Berardi Immigration Law regularly assists our clients with the best compliance practices for employee verification, technical recordkeeping, and documentation requirements. Our immigration seminars can maximize the effectiveness of your immigration practices. We can provide you with strategic planning, conduct an internal audit of your existing practices, assess the potential liabilities of your current procedures, and discuss the government’s “E-Verify” program. In addition, we can help you draft internal policies that address a variety of immigration-related topics, such as I-9 compliance, PAF maintenance, how to respond to “mismatch” letters received from the Social Security Administration, and how to avoid liability under anti-discrimination and “document abuse” laws. Contact Berardi Immigration Law today to establish your organization’s immigration compliance practices with confidence!