Immigration Updates

September 9, 2010

U.S. immigration law is, as much as anything else, a minefield for the unwary employer.  The field is notorious for its shifting and sometimes unannounced government interpretations and requirements, confusing and esoteric acronyms, and over-reliance on agency memoranda in lieu of published regulations.

Although we may not give it much thought, the fact is that immigration law affects every employer in the United States each time a new employee is hired, even when the employee is a U.S. citizen.  Since 1986, all U.S. employers have been required to verify that their new hires are authorized to work in the U.S.  The record of this verification is maintained on Form I-9, issued by the Department of Homeland Security, which contains an affirmation from the employer that it has reviewed acceptable documents presented by the new employee evidencing identity and work authorization.  Failure to create or maintain proper I-9 records can subject the employer to civil fines, disbarment from eligibility for federal government contracts, and criminal prosecution in cases of knowingly hiring illegal workers.

The Obama administration has increased enforcement actions against employers, with record numbers of I-9 audits announced already in the past year.  Now is not the time to be unprepared in the event of a government audit, which typically provides the employer with only three days to gather and prepare the records to be scrutinized by the DHS.  Employers should consider engaging outside counsel to review the company’s I-9 records for proper completion and maintenance, advise on procedural corrections and provide I-9 training to the appropriate staff, and counsel on ways to mitigate any deficiencies that may be turned up.  Ensuring the company’s compliance with I-9 verification requirements ahead of time is vital – an employer does not want to learn of errors and violations for the first time from the DHS enforcement inspectors.

Just as important these days is compliance with documentary requirements for H-1B workers.  Each H-1B employee must be supported by a Labor Condition Application (LCA) filed with the U.S. Department of Labor.  In turn, each LCA must have a public examination file containing numerous documents specific to the required wage, notification to U.S. employees, and offered company benefits.  This public examination file must be made available for inspection to any interested party, including the Department of Labor, which has increased its use of this auditing tool dramatically under the Obama administration.

The DHS has also announced a breathtakingly large increase in its H-1B enforcement activities – promising at least 20,000 site visits in the near future to review files and interview employers and employees with respect to the assertions made in LCAs and H-1B petitions.  Employers should consider engaging outside counsel to audit the company’s LCA public examination files for compliance with the regulations, and advise and prepare staff and H-1B employees for what to expect in the event of a DHS site visit.  Any questions an employer may have concerning H1B and LCA compliance should be addressed before they are asked by the DOL or DHS.