Is Your House in Order? A Guide to Immigration Worksite Enforcement

With our increasingly global workforce, it’s critical to have awareness of both the legal aspects of onboarding foreign hires and the cultural, “human” aspects of a diverse global workplace. Managing a multi-national workforce requires careful management – from the initial hiring/screening process through relocation. Employers are mandated to review acceptable I-9 identity and employment eligibility documents for each employee and complete Form I-9. While the Immigration Reform and Control Act ("IRCA") has been in place since 1986, many employers are still falling short on the requirement to verify the identity and work authorization of any individuals hired after November 6, 1986. With the added documentation management challenge, employers have to keep up with the changing immigration landscape to ensure government compliance and developing their desired workforce.

Harris Beach Murtha’s Immigration Law Practice Group includes immigration attorneys that work across New York state, in New York City, in New Jersey, Connecticut and Massachusetts.

By working with international human resource managers, general counsel and business owners, in facilitating the transfer and hiring of foreign employees, we assist in the creation of global mobility and talent acquisition programs to ensure compliance with United States Citizenship and Immigration Services (USCIS) and Department of Labor (DOL) requirements. This visa process can be complicated and requires the filing and issuance of an employer-sponsored visa petition. The process includes:

• Advising employers on legal hiring practices to avoid discrimination.
• Analyzing job description and foreign national candidate background to determine best visa strategy.
• Screening foreign national applicants to determine immigration needs.
• Working with foreign national applicants on visa application processing at U.S. Consulates abroad.
• Counseling employers on document and file retention requirements.

In today’s increasingly complex immigration enforcement setting, employers face multiple challenges, including unannounced USCIS Administrative site visits (also known as onsite inspections), U.S. Department of Labor Wage and Hour investigations, U.S. Immigration and Customs Enforcement (ICE) workplace raids, and Form I-9 audits. While these processes all aim to ensure compliance with federal laws, they have distinct purposes and require different strategies to effectively address. ICE raids primarily target unauthorized workers and enforce immigration laws, often causing significant disruptions and legal consequences for businesses. USCIS and DOL onsite inspections, on the other hand, are conducted to verify that the terms outlined in H-1B, H-2A, H-2B, and other Nonimmigrant Worker visa petitions are being followed, as far as employee duties, compensation and work location. Finally, I-9 audits carried out by the federal government focus on ensuring all employees are properly documented and that employers maintain accurate records.

Understanding how to manage these three processes is crucial for maintaining compliance and protecting businesses from potential fines, penalties and reputational damage. In this fact sheet, we’ll provide practical steps to handle USCIS onsite inspections, ICE raids and Form I-9 audits, helping employers stay prepared and confident in managing obligations under federal law.

What Employers Can Do to Prepare in Advance of Enforcement Actions

Conduct an Internal I-9 Audit

 Review all I-9 forms for accuracy and completeness
 Correct errors properly: do not backdate; use single line to strike out errors, initial and date
 Reverify work authorization for employees with expired documents

Identify Vulnerable Employees to Explore More Secure Status

 TPS
 DACA
 Humanitarian Parole (Ukraine, Nicaragua, Haiti, Venezuela)
 F-1 STEM OPT
 H-4 EAD
 Employees from predominantly Muslim countries could be subject to travel bans

Develop a Worksite Enforcement Plan

 Designate a Response Team: assign key personnel to handle ICE/DHS interactions (HR, Legal Counsel, Management)
 Train Staff: ensure employees, including receptionists and managers, know how to respond when government agents arrive
 Establish Procedures for handling document request and employee questioning

Know Your Legal Rights and Obligations

 ICE must have a judicial warrant for Non-Public Areas: Employees are not required to allow access without a judicial warrant
 Limit Scope of I-9 Audits: ICE can only inspect I-9 forms and supporting documents, not other business records unless specified
 Employee Rights: workers have the right to remain silent and request legal representation

Maintain Updated Records

 Store I-9’s separately from personnel files for easy access
 Keep backups of payroll and employment records in case of sudden enforcement action
 Ensure contact information for legal counsel is readily available

Prepare a Communication Plan

 Inform employees of their rights
 Refrain from making discriminatory employment decisions based on national origin or suspected immigration status
 Develop a public relations strategy in case of media inquiries

What to Expect During an I-9 Audit

Form I-9 audits are conducted by Immigration and Customs Enforcement (ICE) to ensure employers comply with employment eligibility verification requirements under the Immigration Reform and Control Act (IRCA). We are living in an era of unprecedented enforcement with the potential for significant employer sanctions and penalties for seemingly minor errors and non-compliance. It is critical that employers have an understanding of the I-9 completion process, as well as compliance requirements. ICE is a well-funded machine that takes a “no tolerance” approach to I-9 completion and maintenance.

These audits focus on verifying that employers have properly documented their employees’ eligibility to work in the U.S., ensuring all I-9 forms are completed accurately and on time is crucial. Any discrepancies or errors can lead to potential fines or penalties. This includes proper completion of Sections 1, 2 and 3 of the Form I-9, as well as timely re-verification for employees with temporary work authorization.

Employers must verify the authenticity and validity of documents presented by employees as proof of identity and work authorization. This verification process must be done without discrimination and in accordance with the law, which can be complex due to the variety of acceptable documents and potential changes in immigration regulations.

The Anatomy of an I-9 Audit

Step 1: Notice of Inspection (NOI) -- The employer receives an NOI from ICE or the Department of Homeland Security (DHS), notifying them of the audit. Employers typically have three business days to gather and present the required Form I-9 documents.

Step 2: The employer must provide I-9 forms for all current employees (and some past employees, depending on recordkeeping requirements). ICE may request additional documents, such as payroll records, employee lists and copies of identity and work authorization documents (if retained by the employer).

Step 3: ICE auditors review (“Scrub”) I-9 forms for incomplete or missing forms, errors in form completion (e.g., incorrect document verification), unauthorized workers (employees without proper work authorization), and improper recordkeeping.

Step 4: After the review, ICE may issue one or more of the following findings:

• Notice of Compliance: No violations found, and the employer is in full compliance.
• Notice of Technical or Procedural Failures: Minor errors that must be corrected within 10 business days.
• Notice of Suspect Documents: ICE believes the employee has fraudulent or unauthorized work authorization. The employer must take action, including terminating the employee if work authorization cannot be verified.
• Notice of Discrepancies: ICE cannot determine work authorization for some employees; the employer must provide additional documentation.
• Notice of Intent to Fine (NIF): Issued if significant violations are found, leading to potential financial penalties.

Step 5: Employer Response and Potential Fines — Employers may correct minor violations within 10 days to avoid fines. If fined, employers can pay the fines, negotiate a settlement with ICE or request a hearing before an Administrative Law Judge (must be done within 30 days)

Step 6: Final Decision and Penalties — If the employer contests the fines and loses the appeal, they must pay the penalties. Penalties can range from hundreds to thousands of dollars per violation, depending on the severity and history of non-compliance. In extreme cases, criminal charges may be pursued if the employer knowingly hired unauthorized workers.

Step 7: Follow-Up and Future Compliance — ICE may conduct follow-up audits to ensure ongoing compliance.
Best Practices for I-9 Compliance:

 Regular Internal Form I-9 Audits: Conduct regular internal I-9 audits to ensure all forms are complete and accurate. Any discrepancies, such as missing signatures or expired documents, should be corrected immediately.

 Develop an I-9 Compliance Policy: Employers should develop an I-9 Compliance Policy, including protocols on storage and retention. Regularly review employment authorization verification procedures to ensure compliance.

 Train Employees on Form I-9 Compliance: Employers should educate HR personnel and managers about Form I-9 compliance, the proper completion of forms, and the need to verify employment eligibility documents within the required time frame. Regular training can prevent common errors that often lead to penalties.

 Maintain Proper Record Keeping: Keep I-9 forms for all current employees and for terminated employees, for at least three years after hire, or one year after termination, whichever is later. Store documents securely and separately from personnel files.

What to Expect During an H-1B Onsite Inspection

The H-1B visa status allows U.S. employers to temporarily employ foreign professionals in specialty occupations. U.S. Citizenship and Immigration Services (USCIS) ensures compliance with H-1B program requirements through unannounced onsite inspections, part of the Administrative and Verification Program administered by USCIS Fraud Detection and National Security Unit (FDNS), with the objective of detecting fraud and abuses within the H-1B program.

H-1B onsite inspections verify that information provided in an employer’s H-1B petition filed with USCIS on behalf of the employee is accurate and truthful; confirm the employer knowingly filed the petition in good faith; and ensure the employee is qualified for the position stated in the petition. Thus, understanding how to handle the arrival of a USCIS inspector can make the process smoother and help ensure compliance. Below are steps to follow in anticipation of, and during, an onsite inspection.

Prior to an Onsite Visit: The employer should designate an organizational representative in advance to an onsite inspection. They must have knowledge about H-1B petitions to act as the point-of-contact for the inspector. The representative should:

• Be prepared to answer questions about the nonimmigrant worker, including their job duties, salary and worksite location(s).
• Provide access to requested documentation, such as the Public Access Files (PAFs), in a timely and organized manner. PAFs are mandated by the Department of Labor (DOL) for H-1B visa holders, to ensure transparency and public access to certain information about H-1B workers for purposes of protecting both foreign and domestic workers’ interests. A PAF includes documents such as the Labor Condition Application (LCA), wage rate documentation, job description and prevailing wage determination.
• Proactively review and familiarize themselves with the PAFs to ensure they are complete and accurate. Employers must maintain PAFs for one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA.
• If the primary contact is unavailable, ensure a trained backup representative is ready to step in.

Day of the Unannounced Onsite Visit: A USCIS FDNS inspector or an outside contractor authorized to conduct administrative site visits will appear unannounced at the employer’s principal place of business, or the H-1B employee’s work location, to verify the employment terms outlined in the H-1B petition are being met and whether the employee is working in compliance with the terms outlined in the H-1B petition filed by the employer.

When the inspector arrives, the company representative will greet them professionally and request proper identification and credentials issued by the Department of Homeland Security (DHS). Inspectors are required to provide this information upon request. The inspector’s credentials should be verified before they are allowed to proceed.

Duration of Onsite Inspections: Onsite visits can take a few hours, depending on the complexity of the case and the inspector’s objectives. Others could take an entire day or require follow-up visits. If the inspector requests to call the H1-B employee, the employee can request that the inspector contact the employer first.

Information and Documentation Requested by an Inspector Throughout the Onsite Visit: During an inspection the inspector will:

• Verify the information in the Petition for Nonimmigrant Worker (Form I-129) and Labor Condition Application (LCA), including supporting documents.
• Review public records and information about the petitioning organization.
• Interview personnel to confirm the H1-B employee’s work location, hours, salary and duties.
• Tour the company facility or the employee’s department, or visit the employee’s workspace, if necessary.
• Request to review certain documents, including the employee’s pay stubs and the company’s financial reports.
• Verify the employer’s address listed on the H1-B petition.
• Confirm the H1-B employee’s worksite. Therefore, it is imperative to verify that the worksite indicated on the H-1B petition matches the employee’s actual location.
• Review the employee’s job duties and previous employment.
• Check access to the employee’s schedule and identify the employee’s supervisor.
• The inspector may also request a picture ID from the organizational representative.
• The inspector may request to tour the facility, examine records or speak with other employees.

A company representative should accompany an inspector at all times of the visit to monitor the scope of the inspection and ensure it aligns with USCIS’s stated purpose; provide context or clarification as needed; and prevent unauthorized access to sensitive areas or unrelated records.

Inspectors must obtain permission before taking photographs or accessing areas not directly related to the H-1B petition.

Additionally, the inspector may ask the company representative to confirm the following:

• How long the employee has been employed by the employer.
• The employee’s official job title.
• Whether the representative has access to the employee’s PAF.
• The recruitment method utilized to hire the employee.
• How long the company advertised the position.
• Where the job was posted (i.e., career website, newspaper, job board).
• The representative’s role in onboarding.
• How frequently the employee’s performance is evaluated.
• Whether the employee is paid hourly or on a salary basis.

Documentation Requested by the Inspector During the Onsite Visit: The inspector may ask for specific documents, such as: H-1B Public Access File; payroll and W-2 records to verify the H-1B employee’s salary; and proof of the H-1B employee’s active employment and job duties.

The company representative should ensure all requested documents are readily accessible and organized. They should only provide information specifically requested by the inspector to avoid confusion or unnecessary disclosures.

Employer Representative Must Facilitate Employee Interviews: The inspector may wish to interview the H-1B employee. The employee should be prepared to respond to questions they may be asked, such as:

• Details about their job duties and work schedule.
• Information about their educational background.
• Whether they paid any fees related to the H-1B petition.
• Questions related to their previous employment.

The employee should be encouraged to answer questions honestly and succinctly. If the employee is unsure of an answer, they should not guess but instead state that they do not know.

If the employee is not at the worksite, an inspector may note the visit as “unsuccessful” but schedule a visit for a future date and time.

After the Onsite Visit: Immediately after the onsite visit is completed, the company representative should review their notes and immediately consult with their legal counsel to:

• Ensure all requested documentation was appropriately provided.
• Address any additional follow-up requests from USCIS.
• Identify any potential compliance issues and take corrective action as needed.

The company representative should keep a detailed record of the inspection, including:

• Inspector’s name, title and agency contact information;
• Date and time of the visit;
• Summary of the questions asked and documents provided; and
• Notes on any photographs taken or areas visited.

These records can be invaluable if follow-up actions are required or if questions arise about the inspection.

• File complaints if ICE agents exceeded their authority or engaged in misconduct during the raid.
• Provide emotional support and counseling resources to affected employees.

Stay Compliant and Proactive — Regularly audit your I-9 records to ensure compliance with immigration laws; avoid knowingly employing unauthorized workers to reduce the risk of future enforcement actions.

Navigating the ICE Raid

Immigration and Customs Enforcement (ICE) visits to workplaces can be stressful situations that require careful handling. As workplace immigration enforcement continues to evolve, it’s crucial for managers, in-house counsel, and HR professionals to understand how to prepare for and respond to these visits.

In an ICE raid, the agency’s objective is to detain undocumented employees working for employers in the United States. ICE raids are generally targeted, meaning ICE agents may have a list of names of individuals they are looking to detain, or alternatively, the raid may be targeted towards a particular industry that is known to have a high volume of undocumented employees, such as restaurants and the hospitality, construction, cleaning and agriculture industries.

ICE raids are not announced in advance. Rather, ICE agents are free to enter any public areas of the business, such as a lobby or parking lot. However, in order to enter non-public business premises, the agent must have a signed judicial search warrant or the employer’s consent.

It is important for employers to comply with these investigations to maintain the integrity of their overall immigration programs. However, due to the unannounced nature of ICE raids and the sensitive nature of the information about employees and the company that may be sought, employers must take care not to inadvertently violate laws or privacy protections in their efforts to comply with ICE agents’ requests.

Scope of Operations:

Immigration officers are permitted to enter any public areas of your workplace but must have a valid search warrant or your consent to enter non-public areas.

 A valid warrant must be signed and dated by a judge. It will include a timeframe within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, Forms I-9, SSA correspondence, etc.).

 An agent will serve the search warrant on a receptionist or company representative and alert other agents to enter.

 Your company can accept the warrant but not consent to the search. If you do not consent to the search, the search will proceed, but you can later challenge it if there are grounds to do so.

 Depending on the type of business, ICE/HSI may demand that equipment be shut down and that no one leave the premises without permission.

 ICE/HSI may move employees into a contained area for questioning.

 While some agents question employees, others will likely execute the search and seizure of items listed in the warrant.

Employer Rights and Responsibilities:

 If a search warrant is presented, examine it to ensure that it is actually a “Judicial Warrant” signed by the court.

 Write down the name of the supervising agent and the name of the U.S. attorney assigned to the case.

 Have at least one company representative follow each agent around the facility to take notes or videotape the officer.

 If agents presented a valid search warrant and want access to locked facilities, unlock them.

 Request reasonable accommodations as necessary. If agents insist on seizing a document that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized.

 Do not block or interfere with federal agent activities. Note that you are not required to give the agents access to non-public areas if they did not present a valid search warrant.

 Object to a search outside the scope of the warrant. Do not engage in a debate or argument with the agent about the scope of the warrant. Simply state your objection to the agent and make note of it.

 Protect privileged materials.

 Ask for a copy of the list of items seized during the search. The agents are required to provide an inventory to you.

 Company representatives should not give any statements to federal agents or allow themselves to be interrogated before consulting with an attorney.

 You may inform employees they may choose whether or not to talk with federal agents, but do not direct them to refuse to speak to agents when questioned.

 Do not hide employees or assist them in leaving the premises without permission.

By following these steps, employers can ensure they handle enforcement actions lawfully and effectively while protecting their business and employees’ rights.

Key Takeaways

While employers may have little to no notice of various immigration enforcement measures, adequate preparation is key to minimizing disruption and the legal consequences that could result.