HR Management & Compliance

Immigration Crackdown: DHS Launches Thousands of H-1B Inspections, I-9 Audits

By Christopher L. Thomas

The federal government is making it clear to employers that immigration enforcement is a priority for the Obama administration, and that employers failing to comply with the law face severe consequences.

On November 19, the Department of Homeland Security (DHS) sent out a notice that it intends to audit the I-9 forms of 1,000 employers. The audits are in addition to news from July in which 654 employers were informed that their I-9 forms would be scrutinized. Additional waves of audits are also expected.

News of the dramatic increase in I-9 audits follows word that the federal government is planning to conduct 25,000 on-site inspections at companies employing workers with H-1B visas — a fourfold increase over last year.

H-1B and L-1-Related Inspections
To accomplish the inspections, DHS has established the Fraud Detection and National Security Division (FDNS). With nearly 600 officers and more than $90 million in funding (arising from the $500 fraud-detection fees for each initial H-1B or L-1 petition), the FDNS will conduct the 25,000 inspections, up from just over 5,000 in the previous fiscal year. The FDNS already has begun to dispatch officers to work sites throughout the United States.

During the on-site visits, the officers ask to meet with HR personnel and employees to evaluate whether the H-1B employees work at the company, receive the wages outlined in the nonimmigrant visa petition and labor condition application, and perform the precise duties outlined in the petition.

In the event that discrepancies are discovered, the visiting officer will make a finding of fraud and refer the case for further investigation. Because the consequences for visa fraud are extreme (with a potential of up to 10 years in prison per violation), employers will need to be sure they are taking appropriate steps to comply with all aspects of the visa process for their H-1B and L-1 employees.

Not to be left out, the U.S. Department of Labor (DOL) also has begun to increase its investigation of Public Access Files (PAFs), which are required for each H-1B petition. Employers that fail to maintain their PAFs properly will face the possibility of back pay to H-1B workers (and sometimes similarly employed American workers), civil money penalties of up to $1,000 to $35,000 per violation, disqualification from the immigration benefits process, and, of course, criminal prosecution in extreme cases.

I-9 Audit Results
The 654 I-9 inspections announced in July have yielded the following results thus far:

  • Immigration and Customs Enforcement (ICE) agents reviewed more than 85,000 I-9 forms and identified more than 14,000 suspect documents — approximately 16 percent of the total number reviewed thus far.
  • To date, ICE has issued 61 Notices of Intent to Fine, resulting in $2,310,255 in fines.
  • ICE continues to review 267 cases, with the options of fining those companies or even referring egregious violators for criminal prosecution.
  • ICE closed 326 cases after the businesses were found to be in compliance with applicable immigration laws or after they were served with warning notices in expectation of future compliance.

Employers that fail to establish and implement effective I-9 compliance programs face substantial civil liability and, increasingly, the possibility of criminal prosecution.

Warning for employers
In light of the latest developments in immigration enforcement, the time has come for employers to establish effective compliance programs. All employers must have effective I-9 verification procedures and compliance programs in place. And those that rely on foreign-born labor, using the H-1B and L-1 visa programs, will need to ensure they have developed and implemented effective compliance measures to prepare for the likelihood of FDNS on-site visits and DOL audits.

Christopher L. Thomas is a partner in the Denver office of Holland & Hart LLP.