The Department of Homeland Security (DHS) has clarified that employers who fail to comply with applicable immigration law will face severe consequences. Just yesterday, on November 19, DHS sent out a notice that it intends to audit 1,000 additional employers. This notice, of course, is in addition to the one sent out in July of this year. In that notice, 654 employers were informed that their I-9 forms would be inspected. Those earlier inspections, thus far, have yielded the following results:
1. ICE agents reviewed more than 85,000 Forms I-9 and identified more than 14,000 suspect documents—approximately 16% of the total number reviewed thus far.
2. To date, ICE has issued 61 Notices of Intent to Fine, resulting in $2,310,255 in fines.
<3. ICE continues to review 267 cases, with the options of fining those companies or even referring egregious violators for criminal prosecution.
4. 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 who fail to establish and implement effective I-9 compliance programs face substantial civil liability and, increasingly, the possibility of criminal prosecution.
In addition to the dramatic increase in I-9 inspections, DHS has established the Fraud Detection and National Security Division (FDNS). With nearly 600 officers, and with over $90 million dollars in funding (arising from the $500 fraud detection fees for each initial H-1B or L-1 petition), FDNS has announced its plans to inspect over 25,000 employers (up from just over 5,000 in fiscal year 2009). FDNS has already begun to dispatch officers to worksites throughout the United States. In these onsite visits, the officers ask to meet with human resources 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 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.
Finally, not to be left out, the Department of Labor (DOL) has also begun to increase its investigation of Public Access Files (PAFs). These PAFs are required for each H-1B petition. Employers who 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.
In light of these 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 the employers who rely upon foreign-born labor, using the H-1B and L-1 visa programs, will need to ensure that they have developed and implemented effective compliance measures to prepare for the likelihood of FDNS onsite visits and DOL audits.